Special Terms and Conditions for the Product "HotSpot Hosting"
The contractual partners are bintec elmeg GmbH, Suedwestpark 94, D-90449 Nuremberg (Nuremberg Local Court HRB 24765) and the “Customer”.
The following terms and conditions govern bintec elmeg GmbH’s cooperation in operation of a publicly accessible Internet service (hot spot) by the customer for hot spot users. Provision of the hot spot by the customer requires not only a hot spot gateway, but also a hot spot server that is responsible for managing the hot spot users and stores all the data required for ensuring compliance with statutory regulations on storing data. bintec elmeg GmbH shall provide the customer with this hot spot server in the form of a portal, including a user interface, that is operated by bintec elmeg GmbH or on behalf of bintec elmeg GmbH (referred to overall as “hot spot hosting”).
In addition and supplementary to these Special Terms and Conditions, bintec elmeg GmbH’s General Standard Terms and Conditions shall apply in the version applicable at the time the contract is concluded.
Provision of hot spot hosting comprises solely the management of logon data and further accounting information on the hot spot users and access of each customer to a password-protected administration area on the hot spot server where user tickets, etc. can be administered.
This does not involve provision of a Web server that allows the customer to store any desired data. bintec elmeg GmbH shall also not provide any services to enable the hot spot users to actually obtain access to the Internet.
The customer orders a hot spot hosting license from bintec elmeg GmbH by means of a simple application. The contract is accepted by bintec elmeg GmbH by means of delivery of the license document or written confirmation of the order.
After the license has been enabled electronically, bintec elmeg GmbH shall e-mail the customer the access data for the hot spot server within three working days
The contract shall run for one year, starting upon enabling of the license by the customer via bintec elmeg GmbH service web pages. The contract can be renewed by a further year in each case through purchase of a new license.
The right of the parties to extraordinary termination of the contract for an important reason shall remain unaffected. In particular, an important reason for termination of the contract by bintec elmeg GmbH shall be:
- Violation by the customer of statutory prohibitions, in particular infringement of requirements under copyright, competition, name and data protection laws.
- A delay in payment lasting more than two weeks
- Continuation of other violations of the contract after being warned to desist by bintec elmeg GmbH
- A fundamental change in the legal or technical standards in the Internet, if this means bintec elmeg GmbH cannot be reasonably expected to provide its services in full or part.
bintec elmeg GmbH shall warrant mean accessibility of the hot spot servers of 98% as an average for the year. This shall not include times that are caused by a fault in Internet access at the customer’s business establishment. It shall also not include times when the hot spot server cannot be accessed due to technical or other problems that are outside bintec elmeg GmbH sphere of influence (e.g. force majeure, fault of third parties). bintec elmeg GmbH may restrict or discontinue access to the hot spot server in full or in part if necessary to ensure the security of network operation, maintain the network’s integrity and in particular avoid serious disruptions to the network, the software or stored data.
The customer shall report problems immediately to the bintec elmeg GmbH service hotline during normal office hours (Mondays to Fridays 9:00 a.m. to 5:00 p.m.). A fault rectification time within 24 hours after receipt of the complete and comprehensible problem report shall be warranted.
bintec elmeg GmbH shall not disseminate customer data provided to it for the purpose of fulfilling the contract or use such data for its own marketing purposes.
The customer shall be responsible for the content the customer or the hot spot user downloads from the Internet or provides and for complying with related statutory provisions. This shall also apply if third parties act on behalf of the customer or the customer provides third parties with access data for bintec elmeg GmbH services. bintec elmeg GmbH shall not be obliged to examine use of hot spot hosting by the customer or the hot spot user for violations of the law (e.g. copyright infringements). In particular, the customer shall comply with data protection provisions, rights of privacy, proprietary rights and standards of morality. The customer shall prevent the spread of viruses and refrain from excessively loading the networks by untargeted and improper dissemination of data. The customer shall point out these obligations to all persons who use the services.
The customer shall not disclose any access data provided by bintec elmeg GmbH to unauthorized persons and shall inform bintec elmeg GmbH as soon as it becomes aware that unauthorized third parties have gained knowledge of the access data.
If the customer is to blame for violation of an obligation, the customer shall be obliged to reimburse bintec elmeg GmbH for damage resulting from the violation or to indemnify bintec elmeg GmbH against any liability.
bintec elmeg GmbH shall ensure compliance with the obligations for storing traffic data stipulated in most European countries. The traffic data shall be surrendered only pursuant to a court order.
The traffic data and configuration data of the customers (clients, configurations, accounts, etc.) shall be backed up by bintec elmeg GmbH (e.g. on tape) at 24-hour intervals.
bintec elmeg GmbH shall be liable for complying with the requirements for storing data stipulated in most European countries.
In addition, any further claims for damage, for whatever legal grounds, shall be excluded, apart from in cases of intent and gross negligence. bintec elmeg GmbH shall therefore not be liable in particular for loss of prospective profits, loss of prospective savings, damage from claims by third parties and other consequential damage.
This exclusion of liability shall not apply if further claims for damage are based on the fact that the average availability of the hot spot server is below 98% as an average for the year. In this case, bintec elmeg GmbH shall pay the customer flat-rate compensation of 5% of an annual license for each 1% of less accessibility, but at most a full annual license on the basis of the end customer price.
All other possible claims for damages by the customer against bintec elmeg GmbH shall be limited to the amount of the annual license paid by the customer on the basis of the end customer price.