Managed Hosting
General Terms and Conditions of SysEleven GmbH
Preamble:
SysEleven GmbH (hereinafter referred to as “SysEleven”), Boxhagener Straße 80, 10245 Berlin, Germany, provides web hosting services. The client (hereinafter referred to as “the Client”) would like to make use of these services in accordance with the following contractual terms and conditions.
1. Conclusion of the contract and scope
1.1. Details on the specific service/services to be provided by SysEleven can be found in the appendices to this contract. The quantity of the services is variable and can be flexibly changed by the Client (see point 11 below). The services provided by SysEleven are not intended for consumers within the meaning of Section 13 of the German Civil Code (BGB).
1.2. A contract shall be deemed to be concluded if SysEleven accepts, by means of an order confirmation email, the order placed by the Client on the basis of a quote prepared by SysEleven (hereinafter referred to as “the Contract” regardless of whether one or more contracts are concluded).
1.3. These contractual conditions apply exclusively to the contractual relationship between SysEleven and the Client. Any general terms and conditions prepared by the Client shall not apply. Counterclaims made by the Client with reference to its own general terms and conditions shall be expressly rejected if such terms and conditions differ from these contractual conditions or contain provisions which conflict with those laid down herein.
2. Object of the contract
2.1. The object of the contract is the provision of computer capacity and storage space (server hosting) as well as the provision of permanent access to data on the internet (web hosting) in accordance with the individual agreement made between the parties as per Annex Hosting Concept/Quote/Service Certificate. The Client is obliged to procure the minimum amount stipulated in Annex Hosting Concept/Quote/Service Certificate. SysEleven also offers services which support or supplement its hosting activities and which the Client can book separately.
2.2. Depending on the tariff and (optional) service level agreement (“SLA”) selected, the Client shall be provided with dedicated or virtualised servers with or without software and different service features as defined in more detail in Annex Hosting Concept/Quote/Service Certificate.
2.3. If applicable, the SLA selected by the Client can be found in the annexes to the current versions of the Service Level Agreements and product-specific Service Level Agreements.
2.4. The Client shall receive login data to its front-end area in which it can see how much capacity it is using. This login data must be kept confidential at all times and must not be made available to third parties. If the Client becomes aware that its login data has been used by an unauthorised party, it must inform SysEleven of this immediately. The Client shall be solely responsible for all activities relating to its login data.
3. Hosting services
3.1. SysEleven shall make the data contractually stored by the Client (in particular its website) available online permanently, globally and, as a general rule, publicly via the network maintained by SysEleven and the internet to which this network is connected. SysEleven cannot be held responsible for the success of the various means of accessing the website, unless problems are caused exclusively by the network operated by SysEleven, including the interfaces maintained by SysEleven to third-party networks.
3.2. The Client shall obtain access to SysEleven’s server to the extent agreed between the parties. To this end, SysEleven shall provide the Client with the appropriate certificates. The certificates must be kept secret at all times and must not be made available to unauthorised third parties. Moreover, the certificates are only intended for the specific individual to whom they are given. However, the Client may request multiple personalised access rights so that its employees can gain access to the server. The Client shall inform SysEleven immediately in the event of third parties gaining access to the login data. Third parties also include any companies affiliated with the Client. The Client shall be solely responsible for all activities relating to the certificates made available to it.
3.3. SysEleven shall enable the Client to view via the client frontend the traffic used as the basis for the amount to be invoiced. The statistics form the basis of the monthly traffic calculation which includes the external traffic.
4. Use of software
4.1. If SysEleven provides software, this shall be made available at the interface between the data network within which the software runs and other networks. SysEleven shall provide the software, the processing power needed to use this software and the necessary storage and data processing space. The software shall remain on the servers for which SysEleven is responsible. SysEleven shall not be responsible for establishing and maintaining the data connection between the Client’s IT system and the aforementioned transfer point.
4.2. If the software only runs on SysEleven’s servers or on servers belonging to a service provider commissioned by SysEleven, the Client does not require any rights protected by copyright to use the software and SysEleven shall not grant any such rights. SysEleven shall, however, provide the Client for the duration of the contract the non-exclusive, non-transferable right to download the software user interface into the working memory of the end devices contractually agreed to be used for this purpose so that the software can be displayed on screen and shall allow the necessary copies to be made of the user interface. This right shall be limited to the term of the usage agreement.
4.3. The Client shall be entitled for the duration of the contract to access SysEleven’s software to the contractually agreed extent and to use it as agreed for the contractual purposes.
5. Availability
5.1. Unless agreed otherwise in the annexes to the current versions of the Service Level Agreements and product-specific Service Level Agreements, the servers, software (if applicable) and data paths until the data is transferred to the internet shall be available for 99.5% of the year less the time required for the integration of updates, upgrades, new releases and/or other modifications.
5.2. SysEleven hereby draws the Client’s attention to the fact that the services it provides may be limited or impaired by factors beyond its control. In particular, these factors include the actions of third parties not acting on behalf of SysEleven, technical matters affecting the internet which are beyond SysEleven’s control and force majeure. The hardware and software or technical infrastructure used by the Client may also have an influence on the services provided by SysEleven. In the event of such circumstances having an impact on the availability or functionality of the services provided by SysEleven, this shall have no effect on the need for the services rendered to comply with the Contract.
5.3. The Client is obliged to inform SysEleven immediately and as precisely as possible in the event of malfunctions, interruptions or limitations to the services. If the Client fails to report such incidents, Section 536 c of the German Civil Code (BGB) shall apply accordingly.
6. Incident management
6.1. An incident occurs when a server or software does not work as contractually agreed.
6.2. Incidents are to be reported via a ticketing system which can also be accessed by emailing support@syseleven.de. To ensure support is received promptly, emergencies must also be reported by telephone on +49 30 609 89 22 11.
6.3. Unless the Client has chosen an additional SLA, SysEleven shall only provide support services from Monday to Friday between 9:00am and 5:00pm (“Service times”).
6.4. In each case, the user reporting the incident shall provide as detailed description as possible thereof to enable SysEleven to rectify the error as efficiently as possible.
7. Domain registration
7.1. If SysEleven undertakes domain registration for the Client, SysEleven shall register the domains it has been assigned with the competent registration authority. The parties agree that SysEleven shall not be responsible for researching domain names or for ensuring that the registration process is successful.
7.2. SysEleven shall not perform any legal checks on the domains to be registered or check the content thereof. In particular, SysEleven shall not check if and to what extent a registration is actually or legally possible and permissible. The Client must perform such investigations itself or arrange to have them performed on its behalf. The Client shall be solely responsible for checking the registration rules which apply at the registration authority in question.
8. Rights to the work produced especially for the Client
If SysEleven develops content specifically for the Client which can be legally protected (e.g. scripts or certificates), SysEleven shall grant the Client the exclusive right to use the project results developed and/or produced especially for the Client (“work produced”). SysEleven shall give the Client the exclusive and irrevocable right to use the work produced in any known or unknown way, including the right to process it in any way. This right shall not be limited in terms of content, time and space.
9. Obligations of the Client
9.1. The Client is obliged to provide SysEleven with the assistance it needs to render the agreed services. In particular, the Client shall provide free of charge all the necessary information and documents and shall appoint a sufficiently qualified point of contact with a sufficient level of authorisation for the execution of the contract. The information and documents provided shall form an essential basis for the services rendered by SysEleven. The Client shall be liable if it provides erroneous or incomplete information.
9.2. The Client shall take steps to keep data and information secure. This includes data and information which it processes on IT systems for which SysEleven is responsible. Moreover, SysEleven shall create daily backups for VEs which shall be kept for seven days, weekly backups which shall be kept for four weeks and monthly backups which shall be kept for three months. Data on shared-storage-systems (e.g. NFS servers) shall be backed up daily and the backups shall be retained for three days provided that it does not take any longer than 20 hours to back up the data.
9.3. If, during the execution of the contract, SysEleven receives materials, data and other information from the Client (“client materials”), the Client must ensure that it retains a copy of this data for backup purposes. The Client shall also make sure that data stored on SysEleven’s systems is free from any malware.
9.4. If the Client transfers copyrighted content (e.g. images, brands and other content protected by copyright or trademark law) to SysEleven, it shall grant SysEleven all the rights needed for it to fulfil the contractual agreement. In particular, this includes the right to make such content accessible to the public. In this context, the Client shall ensure that it possesses all the rights to the client materials it transfers needed to grant such rights to SysEleven.
9.5. SysEleven shall not be required to provide its contractual services if and to the extent that the Client does not fulfil its obligations to assist SysEleven. In such an event, any schedules shall be automatically and appropriately amended. If the Client is responsible for the non-fulfilment of its obligations to assist SysEleven and if SysEleven incurs damages as a result, the Client shall be required to compensate for these damages.
10. Indemnity
10.1. As a provider of technical services, SysEleven stores content and data for the Client which the Client inputs, saves and makes available for retrieval when using the services forming the object of the contract. The Client agrees not to upload any criminal content or data or any content and data which is otherwise completely unlawful or unlawful in relation to individual third parties. The Client shall remain the responsible controller of the personal data and must therefore always check whether the processing of such data on the software is actually permitted.
10.2. The Client shall be solely responsible for all content and processed data made available by it as well as any necessary legal positions. SysEleven shall not read the content provided by the Client or check it in any way.
10.3. The Client is obliged in this context to release SysEleven from any liability and to indemnify it from any costs, including possible and actual costs of legal proceedings if claims are made against SysEleven by third parties, including individual employees of the Client, as a result of alleged acts performed by or omissions made by the Client. SysEleven shall inform the Client of the claim and, provided that doing so is legally permissible, shall give it the opportunity to defend itself against the claim. At the same time, the Client shall immediately provide SysEleven with absolutely all of the information available to it concerning the circumstances surrounding the subject matter of the claim.
10.4. Any additional claims for damages shall remain unaffected by this.
11. Changes to the object of the contract (change request process)
11.1. The Client may make changes at any time to the quantity of the services to be provided under Annex Hosting Concept/Quote/Service Certificate – for example in relation to the storage space made use of, the number of CPU cores or the amount of working memory used as well as the number of systems of a certain type (app servers, database slave servers, etc.) – or ask for SysEleven to make such changes. Such change requests must be made directly to the service desk using the ticketing system by emailing support@syseleven.de. Change requests shall be accepted and documented in the ticketing system on working days from Monday to Friday between 9:00 a.m. and 5:00 p.m.
11.2. Changes to the content of the service to be provided (e.g. the desire to make use of additional offers) can also be requested using the ticketing system.
- Description of the desired change;
- Intent and purpose of the desired change;
- Special circumstances and background information that has to be taken into account in relation to the desired change;
- Urgency of the desired change.
11.3. SysEleven shall then immediately review the impact the desired change will have on the structure of the services to be performed under the contract, in particular in terms of the agreed fee. If SysEleven determines that the change request can be readily implemented, the change shall be made and documented in the ticketing system.
11.4. If SysEleven determines that the work to be undertaken cannot be performed or can only be performed with a delay due to the amount of work expected to be required to review the impact of the change, SysEleven shall inform the Client of this and shall advise the Client that the change request can only continue to be reviewed if the services concerned are postponed accordingly. If the Client consents to this postponement, SysEleven shall review the change request. If, however, the Client decides to withdraw its change request, the initiated change request process shall come to an end.
11.5. Unless the desired change can be implemented immediately and without the need for additional consultations with the Client, SysEleven shall – after reviewing the effects of the desired change – explain how it will impact on the agreements made. This explanation shall either propose how the desired change be implemented or clarify why the desired change is not feasible. The parties shall immediately try to come to an agreement on the contents of a proposal to implement the change request and, if successful, shall outline the results of this negotiation in a supplementary agreement. If the parties fail to reach an agreement or end the change request process for another reason, the content and scope of the services shall stay the same as originally planned. (Such supplementary agreements should only be made in exceptional circumstances. In many cases, the nature of business is too dynamic for such procedures.)
11.6. The Client must bear any costs resulting from the change request. In particular, these include the expenses incurred for reviewing the change request and preparing a proposed change as well as compensation for any downtimes. The hourly rate for this work shall be in line with the price list valid on the date on which the contract was concluded.
11.7. To ensure that it can provide its services in accordance with this contract, SysEleven may change their scope or deviate from the agreed services, in particular by enabling larger volumes, without receiving an explicit prior order from the Client in this regard. SysEleven shall inform the Client of such changes as soon as they have been implemented. After receiving notification thereof, the Client may reject the changes, deviations or additional services. If the Client does not oppose the changes or deviations within two weeks of receiving notification thereof from SysEleven, SysEleven shall bill the Client for the services provided in accordance with the price list valid at the time. If the Client does not oppose the changes in writing within the aforementioned period, the change, deviation or additional services shall be deemed to have been approved.
11.8. If the list of services has to be amended due to the Client’s failure to properly assist SysEleven, in particular as a result of corrections to information provided before the list was approved or due to the late submission of information, this shall be deemed as a change in services within the meaning of point 11.
12. Fee, payment and invoicing procedures
12.1. The Client shall be charged in accordance with the volumes used and services booked. Booked resources such as servers and agreed flat rates shall be charged for monthly in advance, while services billed according to the actual level of use, e.g. traffic, shall be charged for retrospectively. The prices shall be in line with the price list valid on the date on which the Contract was concluded.
12.2. Unless indicated otherwise, all prices stated by SysEleven do not include the applicable statutory value-added tax. The fees shall be in line with the price list valid on the date on which the contract was concluded. Additional chargeable services which the Client also decides to make use of following the conclusion of the Contract shall be charged for in accordance with the price list valid at this time or by agreement between the parties.
12.3. If it is agreed that a fixed price should be paid as a one-off sum, this must be paid in full on receipt of the invoice. If it is agreed that a fixed price should be paid in instalments, the agreed instalment must be paid in full on receipt of the partial invoice.
12.4. If the agreed services are paid for on the basis of actual use, monthly invoices shall be issued for the preceding month. These invoices shall be prepared on the basis of written records of the services provided. These records shall be appended to the invoice. When preparing invoices for services billed for on the basis of the time spent, e.g. in the field of managed services, the units of time recorded by SysEleven shall be no smaller than 15 minutes. The records of the services provided shall be deemed to have been accepted if the Client does not object to them within five working days of receipt.
12.5. In the case of fixed-term Contracts, SysEleven may – following the expiry of the initially agreed term – adapt its prices and its rates for services agreed to be paid for on the basis of actual use in line with general price trends. If the increase in fees is greater than 5%, the Client may terminate the contractual relationship with a notice period of five working days. The notice of termination must be given within 14 days of the Client being informed of the price increase.
12.6. The provisions laid down in point 12 shall also apply accordingly to the agreed partial performance of services and partial invoices.
12.7. Invoices shall be sent electronically in PDF format. A fee shall be charged for dispatch by post. Invoices must be paid in full immediately on receipt. The definition of what constitutes a delay in payment and the consequences of such a delay shall be in line with statutory provisions. If a payment owed by a Client is more than three months overdue or has been requested for the third time, SysEleven reserves the right to stop providing its services or to block the Client’s access to its services. If part of an invoice is being disputed, the undisputed amount must always be paid in full.
12.8. Both parties to the Contract may only offset payments against payment requests which are legally binding or undisputed and against such payment requests which have originated from the same legal relationship and have developed from a claim which the party to which the counterclaim is due would be entitled to use to assert a right of retention or a right to refuse to perform services.
13. Liability
13.1. SysEleven shall be liable in accordance with statutory provisions for damages incurred by the Client as a result of intent or gross negligence, the service concerned lacking a guaranteed feature, a culpable breach of essential contractual obligations (known as cardinal obligations; see Clause 13.2 below), the consequences of damage culpably caused to a person’s health, culpably caused physical injury or loss of life. Further, it shall be liable in accordance with statutory provisions for damages for which provision is made under the German Product Liability Act (“Produkthaftungsgesetz”).
13.2. Cardinal obligations are contractual obligations that are a prerequisite for the due implementation of the Contract in the first instance and upon the fulfilment of which the party to the Contract can routinely rely. Conversely, the breach of cardinal obligations may put the achievement of the purpose of the Contract in jeopardy.
13.3. If a cardinal obligation is breached, liability shall – provided the damage is caused merely by ordinary negligence and not by damage to a person’s health, physical injury or loss of life – be limited to damage which is foreseeable and which can typically be expected within the context of contracts such as that concluded between SysEleven and the Client.
13.4. Liability due to interruptions, incidents or any other loss-causing events resulting from telecommunications services provided by SysEleven or third parties for which SysEleven is liable shall be limited to the extent of SysEleven’s possible recourse against the telecommunications service provider in question. SysEleven shall not be held liable for the functionality of the lines providing a connection with the server forming the object of this contract, nor shall it be liable in the event of power failures or server outages beyond its sphere of influence.
13.5. Claims arising from a loss of profit shall be excluded.
13.6. SysEleven and its vicarious agents shall not be held liable in any other respect irrespective of the legal grounds.
13.7. SysEleven’s liability for loss of data shall be limited to the typical cost of data recovery which would have been unavoidable even if the Client had made backups commensurate with the risk on a regular basis.
14. Subcontractors, products provided by third parties
SysEleven may appoint subcontractors to provide the services due. When doing so, SysEleven shall ensure that the hosting services are provided from within Germany.
15. Confidentiality
15.1. The Client agrees to keep permanently confidential all information about SysEleven which has come or will come to its attention in connection with this Contract and which is designated confidential or, in view of other circumstances, is clearly a trade or company secret (e.g. the design and implementation of programming work by SysEleven and other technical and technological knowledge acquired by SysEleven; hereinafter referred to as “Confidential Information”), not to disclose such information to third parties, nor to record it or use it in any other way, unless SysEleven gives its express and written consent for this information to be disclosed or used or the information has to be disclosed by law or under a court ruling or administrative decision.
15.2. Where appropriate, the Client shall make suitable contractual agreements with its employees and any other people working for it to ensure that these individuals also refrain from disclosing, using, passing on or recording the Confidential Information in any way.
15.3. Information shall not be regarded as confidential information within the meaning of point 15 if it
- was already previously known to the Client without being subject to any confidentiality obligations,
- is public knowledge or becomes public knowledge without the confidentiality obligations assumed being breached,
- is disclosed to the Client by a third party without any breach of a confidentiality obligation.
15.4. SysEleven may terminate the Contract for good cause if the Client breaches one of the obligations laid down in this clause. In such an event, SysEleven reserves the right to assert further and more extensive claims, in particular claims for compensation.
15.5. The obligations laid down in clause 15 shall remain in place even once this contract comes to an end.
16. Use of the Client’s details for advertising purposes
When providing lists of existing clients for advertising purposes on its own website or in its own documents, SysEleven may indicate the services which are to be or have already been provided for the Client and may also use the Client’s logo and company name (abbreviated if necessary) for this purpose. In addition, SysEleven may publish press releases about the Client’s order and the project.
17. Data protection
17.1. If SysEleven collects, processes and uses personal data from within the Client’s sphere during the negotiation, formulation and execution of the Contract, it shall do so in accordance with the applicable statutory provisions on data protection and, in particular, shall only do so within the scope of the purpose of the Contract.
17.2. The Client shall not process any personal data on IT systems for which SysEleven is technically responsible. If the Client commissions SysEleven to perform services in the context of which it cannot be ruled out that SysEleven will come into contact with personal data for which the Client is responsible, an agreement on the processing of project data shall be concluded.
18. Duration, termination
18.1. Unless agreed otherwise for individual services, the minimum term of the Contract shall be 24 months from the date on which the Contract is signed. The term shall continue to be extended by an additional twelve months unless the Contract is terminated in writing after the expiry of the minimum term with a notice period of six months to the end of the month.
18.2. This shall not affect the ability of both parties to terminate this contract in writing if the respective other party continues to breach essential contractual obligations despite having received a written warning from the other party to the contract, persists in violating the contract even after a reasonable period of time, and it cannot be reasonably expected for the party terminating the contract to continue the contractual relationship until such a time when it may terminate it ordinarily as outlined above.
18.3. The right to terminate the Contract for exceptional reasons shall remain unaffected by this.
19. Procedure following the termination of the Contract
19.1. If this agreement is fully or partially terminated, SysEleven shall be required to hand over to the Client, or destroy at the Client’s request, all data, documents and materials in its possession which contain business, organisational or technical data or information from or concerning the Client. This shall not apply if the information is required to be kept by law, constitutes SysEleven’s intellectual property, or if the data, documents, etc. to be handed over or destroyed are still required by SysEleven for it to continue executing the Contract.
19.2. At the Client’s request, SysEleven shall perform all work needed to transfer the services forming the object of this contract to the Client or to a third party appointed by the Client (e.g. the migration to another IT system, the provision of appropriately qualified staff, the running of training courses) for a period of up to twelve (12) months following the end of the contract (hereinafter referred to as the “transition period”). SysEleven shall work closely with the Client and third parties appointed by the Client and shall ensure that no disruptions to the provision of the services occur during the transition period. It shall also work to ensure that the Client or third party appointed by the Client is in a position to begin performing the services forming the object of this contract after the contract comes to an end. In this context, SysEleven is also required to prepare and hand over relevant documentation. The Client shall assist with this.
19.3. SysEleven shall continue to be entitled to receive payment for its work in the form of its monthly fee and shall continue to be reimbursed for all other costs until the systems are definitively shut down. Depending on the individual case, it may be agreed that the fee to be paid for each calendar month, the agreed level of availability and the guarantee conditions be reduced for this period.
19.4. Following receipt of the written notification that the Client has been able to read and process all the data transferred, the data stored on the systems at SysEleven’s data centre shall be deleted and SysEleven shall inform the Client of this deletion in writing.
20. Non-solicitation clause
The Client agrees for the duration of this contract not to employ, hire or poach any individuals employed by SysEleven or working for it in any other way or to make any attempt to do so.
21. Miscellaneous
21.1. If the Client is a business person within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the place of fulfilment of all obligations arising from the respective Contract shall be SysEleven’s registered office.
21.2. The Contract shall be governed exclusively by the law of the Federal Republic of Germany. The application of German private international law and the Rome I and Rome II EC regulations is hereby excluded.
21.3. If the Client is a business person within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the place of jurisdiction for any legal disputes arising directly or indirectly from or in connection with the contractual relationship shall be Berlin. This shall also apply in the event of proceedings concerning cheques or bills of exchange.
21.4. In the event of a provision laid down in these General Terms and Conditions, the Special Terms of Business or another contractual document being or becoming ineffective, this shall not have an impact on the effectiveness of any of the other provisions.
These General Terms and Conditions have been translated. Only the German-language General Terms and Conditions (https://www.syseleven.de/agb-sla-managed-hosting/) are legally valid.
Version: February 2020
