General Terms and Conditions of
Bostrot Inh. Eric Trenkel
Willibrordstraße 1
52146 Würselen
Germany

Effective as of March 2022

Clause 1: Applicability, conclusion of contract

(1) botspace.bostrot.com Inh. Eric Trenkel, doing business at Willibrordstraße 1, 52146 Würselen, Germany, (referred to hereinbelow as “Provider”) offers services in particular via its Online Shop at https://botspace.bostrot.com and via the customer portal integrated in the Online Shop (referred to as both the Online Shop and the customer portal hereinbelow as “Online Shop”).

(2) The present General Terms and Conditions (referred to hereinbelow as “GTCs”) apply to all contracts concluded between the Provider and the customer via the Online Shop as well as to all contracts for which the applicability of these GTCs has been agreed between the parties otherwise than via the Online Shop.

(3) Any deviating, contravening or supplemental terms and conditions of a customer will not become a component part of the contract unless this has been expressly agreed in writing. The same will apply even if service is rendered in the knowledge that this contravenes the corresponding GTCs in place with the customer.

(4) The range of services on offer in the Online Shop is intended for consumers and businesses, unless specified otherwise in the Online Shop. A “consumer” means every natural person who enters into a legal transaction for purposes that predominantly are outside his or her trade, business or profession (Section 13 of the Bürgerliches Gesetzbuch (BGB, German Civil Code). A “business“ means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (Section 14 paragraph 1 of the German Civil Code (BGB).

(5) If the customer is a business, the following applies: The present GTCs will also apply to any future contractual relations between the Provider and the customer, even if no separate, renewed reference to the GTCs has explicitly been made.

(6) By clicking on the button “Subscribe” in the Online Shop, the customer makes a binding offer to purchase. Directly after having made said offer to purchase, the customer will receive an email confirming receipt of the order.

(7) Contracts are concluded in the German or English language. In case of ambiguities, the German-language version of the contract will take precedence.

(8) The contractual provisions agreed will be stored by the Provider.

(9) The Provider reserves the right to amend the present GTCs insofar as required in order to adapt them to changed legal or technical framework conditions. The Provider will notify the customer of such amendments via email, whereby the amended passages will be highlighted. All amendments will be considered approved unless the customer lodges an objection in text form within six weeks of receiving notice of the amendments. Along with the notification of amendments made, the Provider will also supply the customer with separate instructions on the right to lodge an objection and on the legal consequences of remaining silent.

Clause 2: Services of the Provider

(1) The scope of the Provider's main service obligations results from the service description in the Online Shop.

(2) The customer may select among the server locations shown in the Online Shop or leave the selection up to the Provider. If the server location “European Union” is not the one selected, then the customer will have the option to agree EU Standard Contractual Clauses with the Provider, along with an agreement on data processing on behalf of a controller.

(3) Unless expressly agreed otherwise, the Provider is entitled to also have the services that it owes under the contract delivered by technically qualified in-house personnel and/or by third parties. Insofar as active cooperation by the customer is required – e.g. when a webspace package or other data stored on the Provider’s servers is to be transferred onto a different server – the customer must cooperate in keeping with the Provider’s instructions within a reasonable, pre-specified deadline.

(4) The Provider is free to duly adapt its services so as to reflect technical advances and/or a changed legal environment, which may occur at any time, provided this does not cause a shortfall in the agreed scope and quality of the contractually owed service. This includes outsourcing the services to another data center within the server location selected by the customer or – if the selection has been left up to the Provider – to some other server location operated by the Provider.

(5) If the agreed contractual service also includes the provision of dedicated servers, then the customer will only be entitled to use a device having the features listed in the product category ordered. The Provider will determine, at its free discretion, the specific hardware and the features of the product category ordered.

(6) The Provider is under obligation to back up data only if and insofar as this is expressly stipulated in the service description.

(7) If the Provider delivers additional services without charging a corresponding remuneration, then the customer has no claim to such services. The Provider is entitled to cease providing any such services previously provided at no charge, to modify them or to make them subject to charge following a reasonable period. The Provider will give the customer timely advance notice about any such cessation, modification or subjection to charge.

(8) The Provider’s obligation to render technical support to the customer is limited to what has been contractually agreed. The Provider does not offer any further going, free-of-charge support services to the customer. The Provider does not provide any direct support to customers of the customer, unless specifically agreed otherwise in writing.

Clause 3: Duties of the customer

(1) Upon conclusion of contract, the customer is to notify the Provider of the following data:

(2) The customer warrants that the data communicated to the Provider are correct and complete. This particularly applies to the declaration regarding the customer’s status as a consumer or a business. The Provider hereby expressly advises that if this information is found to be incorrect, this could trigger legal consequences such as claims to compensation of damages.

(3) The customer enters into obligation to notify the Provider without undue delay of any changes in the data communicated, and to confirm said data within seven (7) days of receiving a legitimate and justified data-related enquiry from the Provider.

(4) The customer is under obligation to properly back up the relevant data on a regular basis. This also applies if the customer has agreed special backup measures with the Provider.

Clause 4: Payment terms

(1) The due dates for remuneration amounts will depend on the service in question and on the respective contractual term. If the customer selects a contractual term of one month for server services, then the total price will fall due immediately. If a contractual term of three, six or twelve months is selected, then the payments will follow an installment schedule specified during the ordering process. The first installment payment will fall due immediately. Each of the subsequent installment payments will fall due on the first of the respective month. If the customer’s place of regular abode is located outside Germany, then payment for all the services of the Provider will fall due immediately.

(2) The customer may elect to render payment via credit card, Google Pay or Apple Pay.

(3) Payment may be made in any of the currencies indicated in the Online Shop. The customer is not entitled to change the currency selected at commencement of contract during the contractual term.

(4) Insofar as the Provider has been commissioned by the customer to render services that go beyond the tasks and duties set out in the present GTCs and in the service description (e.g. software configurations, correction of bugs or problems not caused by the Provider, etc.) the Provider will be entitled to appropriate remuneration in keeping with its respectively current price list.

(5) The Provider is free to adapt its prices to market developments at any time. Any price increase will require consent from the customer. Such consent will be considered granted if the customer fails to lodge an objection against the price increase within four weeks of receiving notice of the change. The Provider undertakes to include a notice in the change notification that advises the customer on the legal consequences of failing to lodge an objection.

(6) In the event of a change in the statutory sales tax, respectively in its method of calculation, the Provider will be entitled to adjust its remuneration amounts accordingly.

(7) In the event of rejected direct debits or payment chargebacks for which the customer is responsible, the Provider will charge a penalty fee in accordance with its respectively current price list, unless the customer can demonstrate that the actual damage incurred was either non-existent or significantly lower than claimed.

(8) If the customer defaults on a payment, the Provider will have the right to suspend the contract for services until the amount in arrears has been paid. The suspension will also entitle the Provider to re-allocate any services that are cost-intensive for the Provider and that were in use up to that point by the defaulting customer. In this event, a loss of data cannot be ruled out, for example when a server is re-assigned to new customers.

(9) Insofar as a contract concluded with the customer does not entail any obligation to make advance payment or insofar as the Provider renders other, for-charge services not covered by the foregoing provisions, then all remuneration amounts (plus sales tax at the statutory rate) will fall due without deduction fourteen (14) days after the invoice date.

Clause 5: Contractual term, withdrawal and termination

(1) Insofar as no deviating provisions have been agreed, all contracts concluded between the customer and the Provider will have an initial term of either one, three, six or twelve months, depending on which term the customer selects. The initial term will commence once the access data for the selected service are made available. The contractual term will be extended by an additional period equivalent to the one selected for the initial term (“Extension Period”), so long as neither party has declared termination observing a notice period of four weeks until the end of the initial term or of an Extension Period. In the current month, notice of termination can be given at the end of the month at the earliest.

(2) The customer must declare termination by way of the customer-account login (https://botspace.bostrot.com) or by means of a text-form declaration (e.g. email).

(3) Each party reserves the right to terminate for good cause. Good cause particularly is considered given if the customer, despite having received a payment reminder, remains in default of a cardinal payment obligation or in culpable breach of the provisions under Clauses 3, 4, 6 or 7.

(4) Consumers will have the right to withdraw from their declared intention to enter into a contract within fourteen (14) days without having to state grounds. To make use of this right the consumer will have to send a written notice to the Provider (e.g. via email) . The right of withdrawal does not apply for businesses.

(5) The Provider reserves the right to terminate the contract for good cause if the customer fails to pay the amount due on the due date or for any other reason that might impact the Provider's business in any unreasonable way.

Clause 6: Rights of third parties

(1) The customer expressly warrants that the provision or publication of the contents which the customer uploads and/or of the websites which are created on the customer’s behalf by the Provider in accordance with the customer’s instructions do not contravene German law or any potentially deviating laws of the country in which the customer’s registered seat is located, particularly including copyright laws, data protection laws, and the laws governing unfair competition. The customer furthermore warrants that the content provided or published does not violate public morals, does not contain any pornographic or obscene materials, does not incite racial hatred, does not infringe upon human dignity, does not endanger children or adolescents, and is not insulting or discriminatory. This also applies to third party websites to which the customer installs a link , has a link installed or tolerates a link.

(2) If the Provider receives a complaint from a third party alleging that content on a customer’s website infringes on the rights of said third party, and if the complaint is sufficiently specific to allow the alleged infringement to be confirmed solely on the basis of the third party’s allegations– i.e. without a thorough legal and factual evaluation – then the Provider will forward the third-party complaint without undue delay to the customer, who is to provide a statement of position. The Provider will grant the customer a reasonable deadline for stating such position. If no statement of position is made within this deadline, the Provider will be entitled to assume that the third-party complaint has merit and will be entitled to delete the content giving rise to the complaint, block web space packages or server or to exclude them from access in any other appropriate way. If the customer calls the merits of the complaint into question in substantiated manner and if this gives rise to justified doubts, then the Provider will inform the third party accordingly and, if the Provider considers this appropriate, will request evidence to prove the alleged infringement of rights. If the third party fails to take a position in response or if the third party fails to produce any required evidence, then the Provider will assume that the third-party complaint is without merit. If the third party issues a statement of position which shows an infringement of its rights or if the third party provides evidence to such infringement, also taking account any exculpatory statements of the customer, then the Provider will be entitled to delete the content giving rise to the complaint, block web space packages or server or to exclude them from access in any other appropriate way. The customer's payment obligations remain unaffected in this case.

(3) The foregoing paragraphs apply accordingly to all other services offered by the Provider and that enable the customer to publish data of whatever kind.

Clause 7: Industrial property rights; copyrights

(1) It is expressly agreed that all rights to the services of the Provider rendered during the contractual term, namely software, know-how, trademarks or other protected rights will be retained in full by the Provider. In the course of the contractual term, the customer enjoys a non-exclusive, non-transferrable, non-sublicensable usage right to the contractually agreed services. This also applies in the event that customer-specific customizations have been made.

(2) Insofar as contractually agreed services can be used only subject to the industrial property rights or copyrights of third parties, the relevant third-party terms and conditions will invariably have supplemental effect. This also applies to open-source software, whose terms and conditions will be communicated to the customer by the Provider upon request.

Clause 8: Unauthorized forms of use

(1) Unless otherwise agreed, the following types of content expressly are prohibited:

(2) Unless otherwise agreed, the following usages of the services expressly are prohibited:

(3) The following applies to dedicated servers, virtual dedicated servers and VPS: Unless otherwise agreed, the following types of content are expressly prohibited:

(4) If the customer breaches a provision of paragraphs 1, 2 or 3, the Provider will be entitled to immediately impose a block on the webspace package, respectively the server, until the breach of paragraph 1, 2 or 3 is remedied. This will also be possible if the webpages/servers of the customer clearly impair the functionality or accessibility of other webpages on the server (in the case of webspace packages) or of other servers within the Provider’s network. The customer will be notified of the imposition of such a block.

(5) The Provider is entitled to immediately block any webspace packages and servers that are being used to operate the “TOR” service, insofar as the Provider has become aware that the server or package is being used unlawfully.

(6) In the event a justified block is imposed, responsibility for any resulting breach of contractual obligations will lie not with the Provider but exclusively with the customer. The Provider’s claim to receive remuneration will invariably continue in effect during the full remainder of the contractual term.

Clause 10: Server administration

(1) The Provider does not grant the customer full and exclusive administration rights for the server made available to the customer. Only the Provider has access to the server’s individual administration password. The Customer has only access to certain administrating functions. Namely following:

This means that the customer is responsible for administering these administration functions at the customer’s own risk and expense. Clause 2 paragraph 5 applies correspondingly.

(2) Insofar as necessary and reasonable, the customer will assist with configuration modifications, e.g. by re-inputting access data or through simple adaptations of the customer’s systems.

Clause 11: Performance undertakings

(1) The Provider will ensure that the physical connectivity of the services is available at an annual average rate of 95%. This will not include periods in which the servers are unavailable online due to technical reasons or other problems that lie outside the Provider’s sphere of influence (force majeure, culpable conduct on the part of third parties or the customer, etc.), nor periods in which the Provider performs necessary maintenance work after giving timely advance notice.

(2) The servers and storage infrastructure located in the Provider’s data centers are connected to the internet via a complex network infrastructure. The data traffic is channeled through various active and passive network components (e.g. routers, switches), each of which permit only a fixed maximum data-throughput rate. This means that data-traffic capacities for individual servers or parts of the storage infrastructure may be limited at certain points and may not conform to the notional maximum bandwidth at the switch port. Unless expressly agreed otherwise, the Provider cannot guarantee the level/volume of the bandwidth that will actually be available for an individual server or parts of the storage infrastructure, but will instead make bandwidth available in accordance with the technical performance capacity of the data center while making due allowance for the performance obligations owed to other customers.

(3) Customers are able to use the Provider’s servers for a specific application whith many possible configurations. The multiplicity of these possibilities makes it impossible for the Provider to guarantee the server’s serviceability or compatibility for specific forms of usage.

Clause 12: Data protection

(1) The Provider renders its services in compliance with EU Regulation 2016/679 (General Data Protection Regulation), the Bundesdatenschutzgesetz (BDSG, German Federal Data Protection Act), the data-protection laws of the German Länder as well as the Telemediengesetz (TMG, German Telemedia Act).

(2) The Provider is free to process personal data relating to the customer without any further-reaching consent, insofar as this is required to establish and implement the contract or for billing purposes. For additional details, please see the Provider’s Data Privacy Policy: https://erictrenkel.com/privacy.html.

(3) Insofar as the customer also wishes to process personal data in conjunction with the services of the Provider, the customer will remain the sole “controller” within the meaning of data-protection law. The Provider will process the personal data as a “processor” acting for a controller within the meaning of Article 28 of the General Data Protection Regulation (GDPR), insofar as an agreement on data processing on behalf a controller is concluded. The customer is hereby advised that the Provider essentially has no way of determining whether or not the customer is even processing the personal data of third parties, or which categories of personal data of data subjects, if any, are being processed, or the manner or purpose of such processing. Thus, the customer is under obligation to give the Provider the required information regarding such data processing.

(4) The Provider hereby expressly advises the customer that, given the current state of technology, it is impossible to fully guarantee data protection for data transfers performed via open networks like the internet. The customer is hereby advised that, depending on the ordered hosting service, the Provider has the technical means to at any time inspect the data that the customer has stored on the server, insofar as the customer does not use a secure data-encryption system. Other users of the internet may also be able, under certain circumstances, to circumvent network security in unauthorized fashion and to control message traffic, insofar as the customer does not transfer data in a securely encrypted manner.

Clause 13: Liability, limitation of liability, force majeure

(1) The Provider will be liable in keeping with the applicable statutory provisions for any damage caused by willful or grossly negligent conduct on the part of the Provider or of its vicarious agents.

(2) In cases of simple negligence, the Provider will be liable for the following:

(a) Injury to life, limb or health; and

(b) Damage resulting from a breach of a cardinal contractual obligation, but only in an amount limited to the damage that was foreseeable and typical for the type of contract involved. Cardinal contractual obligations are ones the fulfillment of which is indispensable to the proper fulfillment of a contract and which can normally be expected in good faith by the customer.

(3) The limitations of liability set forth under paragraph 2 above will not apply insofar as the Provider has fraudulently concealed a defect or has assumed a guarantee for claims under the Produkthaftungsgesetz (ProdHaftG, Product Liability Act) or for breaches against the General Data Protection Regulation (GDPR, Article 82).

(4) The regulations of Section 44a of the Telekommunikationsgesetz (TKG, German Telemedia Act) will remain unaffected, insofar as the matter falls within the Act’s scope of application.

(5) If the Provider is prevented from rendering its contractual services due to force majeure (i.e. events that lie beyond the control of either party, such as wars, uprisings, (terrorist) attacks, epidemics, natural disasters or strikes), then the Provider will be released from its service obligations for the duration of the force majeure and the customer will be released from the obligation to render counter-performance. The contractual term will be extended by the period of interruption caused by the force majeure. If the force majeure is expected to last longer than three months, then either party may terminate the contract. 

Clause 14: Release from liability

For purposes of the relationship with the Provider, the customer undertakes to release the Provider from liability of any third-party claims resulting from unlawful actions by the customer or due to substantive errors in the information provided by the customer. This applies particularly to violations of copyright law, data-protection law, and competition law as well as to violations of the obligations set forth in Clauses 6, 7, and 8 of the present GTCs. The Provider has no obligation to review the customer’s internet sites for potential violations of the law.

Clause 15: Applicable law, place of jurisdiction

(1) The laws of the Federal Republic of Germany apply; the UN Convention on the International Sale of Goods (CISG) expressly is precluded. If the customer is a consumer with a place of regular abode in a Member State of the European Union, then any mandatorily applicable regulations of that Member State will remain unaffected.

(2) If the customer is a merchant within the meaning of the Handelsgesetzbuch (HGB, German Commercial Code), if the customer is a legal entity under public law or if the customer is a Sondervermögen (special assets under public law), then the exclusive place of jurisdiction for any disputes arising from the contractual relationship will be the Provider’s registered seat. The same applies accordingly if the customer is a business. Any statutory provisions that take precedence, particularly those governing exclusive spheres of responsibility, will remain unaffected.

Clause 16: Final provisions

(1) All declarations on the part of the Provider may be forwarded to the customer electronically. This also applies to statements of account relevant to the contractual relationship.

(2) The customer may not offset own claims against the Provider unless these have been acknowledged or finally and conclusively affirmed by a court of law.

(3) The Provider has the right to name the customer as a reference customer and to list the customer as such, whereby this will not entail any obligation to pay remuneration to the customer.

(4) If one or more provisions of the present GTCs should be or become ineffective or unenforceable, then this will not affect the enforceability of the remaining provisions. In such case, the parties will agree on an amendment that corresponds to the purpose that was actually intended, also in economic terms. The same applies in the event of the present GTCs having remained silent on any given matter.

(5) The European Commission offers a platform for the out-of-court dispute resolution (ODR platform), which is available under https://www.ec.europa.eu/consumers/odr. We are neither obligated nor willing to participate in the dispute-resolution procedure.