General terms and conditions of Xirra GmbH

1. General provisions and scope of application

1.1. The Standard Business Terms below apply to all business relations between the customer and Xirra GmbH in the version applicable at the time when the contract is signed.

1.2. The customer’s existing standard business terms, where they collide with, supplement or differ from these Standard Business Terms of Xirra GmbH are not a component part of the contract unless we have expressly consented to the application of the customer’s standard business terms.

2. Signing of the contract

2.1.Our offers and information in regard to the services we render are open and non-binding unless there is an express written assurance. They are subject to technical and other changes where this can reasonably be expected of the customer.

2.2. Upon placing of an order the customer declares his contract offer in a binding manner. We will immediately acknowledgement receipt of the order, however the order confirmation does not signify binding acceptance of the order on our part. However, receipt of confirmation may be combined with a declaration of acceptance on our part.

2.3. Xirra GmbH is entitled to accept the customer’s contract offer on which the order is based within ten days of its receipt. However, we are also entitled to reject the contract offer received after appropriate review.

2.4.Transfers of rights and obligations under this contract to a third party require written form by Xirra GmbH. In addition, an application by the previous customer must be available as well as from a new contract partner, which is signed by both and which is submitted to Xirra GmbH.

3. Customer's obligations

3.1. Should disturbances occur when the server is being used then the customer must immediately inform Xirra GmbH of such disturbances. The customer is obliged to keep the access data for management of the server secret from unauthorised third parties. In particular, user ID and password must be stored such that access to this data is not possible for unauthorised third parties in order to prevent abuse of access by third parties. The customer is obliged to inform Xirra GmbH immediately as soon as he becomes aware that the password is known to unauthorised third parties.

3.2.The customer gives assurances that he will not deposit any contents on the contract storage site or transfer to the internet whose provision, publication or use violates criminal law, copyrights, trademark and other identification rights or personality rights. Any violation by the customer of these obligations will entitle Xirra GmbH to rescind the contract for cause.

3.3. If the customer violates this obligation he is obliged to desist from further violation, to compensate Xirra GmbH for damages incurred or yet to be incurred as well as to release Xirra GmbH from damage compensation and expense reimbursement claims by third parties and protection of Xirra GmbH against, and protection of Xirra GmbH from the same, caused by such violation. The obligation to release from liability also includes the obligation to completely release Xirra GmbH from all legal defence costs (court and attorney fees, etc.). Other claims by Xirra  GmbH, in particular to block contents and to rescind the contract for cause remain unprejudiced.

3.4.The customer will ensure and is liable that applicable child protection regulations are complied with. The customer is obliged, prior to switching on the user account, to provide information on the minimum age for his product.

3.5. The customer’s attention is drawn to the fact that it is incumbent upon him at the end of every working day on which the data holdings were changed by him or his auxiliaries, to conduct data backup in which data deposited on the servers of Xirra GmbH may not be backed up on those servers. It is in addition incumbent upon the customer to carry out at regular intervals a complete data backup, in particular upon installation of new hardware or software. The customer ensures in this way that in case of any eventual destruction of data by Xirra GmbH the destroyed data can be reconstructed at a reasonable expense from data material kept available in machine readable form.

4. Services

4.1. The services made available to the customer are provided with a minimum availability of 99% on annual average, unless otherwise contractually agreed. Exempted from this are outage periods due to maintenance and software updates as well as period in which the server cannot be reached via the internet due to technical or other problems beyond the control of Xirra GmbH (force majeure, third-party fault, etc.).

4.2. The scope of performance emerges from the products and/or services selected by the customer on the order form and/or from the special monthly offers made separately.

4.3. Technical support services are, unless separately agreed, not included in the offers. However, they may be availed of and will then be invoiced separately to the customer.

5. Prices and payment terms

5.1. The prices cited on the order forms include statutory value-added tax and other price components. The price information can be inspected on the website of Xirra GmbH at www.gohost-server.com.

5.2. Xirra GmbH is entitled to raise its prices at maximum once per quarter. The price increase requires the customer’s consent. The consent is deemed to have been given if the customer fails to object to the price increase within four weeks of receipt of notification of the change. Xirra GmbH is obliged to draw the customer’s attention to the consequences of failing to object when the change is notified.

5.3. Payment is made exclusively by issuance of a SEPA based direct debit instruction. Other billing occurs by means of separate invoicing.

5.4. The commissioning of a bank with the debit of your account after four days (seven days for the initial debit) occurs when your order is executed.

5.5. With payment by issuance of a SEPA-based direct debit instruction you must eventually bear those costs incurred as the result of a chargeback from a payments transaction for want of sufficient account balance or due to incorrect bank account data you have transmitted. We charge 10 € in case of chargeback.

5.6. The notice period for advanced pre-notification is shortened to four days.

5.7. You are only entitled to a right to setoff if your counter-claims have been found by a court and definitively adjudicated or are not contested or have been acknowledged by us in writing.

5.8. You may only exercise a right of retention if the claims result from the same contractual relationship.

5.9. If the customer is a contractor under § 14 of the Civil Code (BGB) we are entitled in case of late payment to lay claim to late payment interest in the amount of eight percentage points above the base interest rate of the day. If it be a question of a consumer under § 13 BGB then we are entitled in case of late payment to lay claim to late payment interest in the amount of five percentage points above the base interest rate.

5.10. Xirra GmbH Xirra is entitled to carry out the credic check on cutomer before issuing a payment through direct debit authorisation. If the results were negative, Xirra GmbH can decline its participation in direct debiting.

6. Temporary blockage

6.1. Xirra GmbH is entitled to temporarily suspend the server’s connection to the internet if there is sufficient suspicion of illegal contents within the meaning of item 3.4, due to a warning notice of the allegedly wronged party or due to investigations by government authorities, unless the warning notice is obviously without justification.

6.2. The blockage may also occur temporarily if this is indispensable to maintain network operations or the safety of network integrity. The blockage must be limited to the minimum required and, to the extent technically possible and reasonable, limited to the contents in violation of law. The customer is notified of the blockage immediately with indication of the reasons and challenged to remove the allegedly illegal contents or, alternately, prove their legality.

6.3. The blockage is lifted as soon as the suspicion is dispelled or Xirra GmbH had the opportunity to rescind the contract for cause due to the customer’s conduct.

7. Right of withdrawal

Consumers have a two-week right of withdrawal.

Advisory notice of withdrawal Right of withdrawal

You may cancel your contract declaration within 14 days without indicating any reasons in written form meeting the requirements of § 126b BGB (e.g., letter, fax, email) or – if the item has been delivered to you before the end of the deadline, by returning the item. The deadline begins to run upon receipt of this advisory notice in written form meeting the requirements of § 126b BGB but not before receipt of the merchandise by the recipient (with recurrent delivery of the same kind of merchandise not before receipt of the initial delivery) nor before fulfilment of our information obligations under article 246, § 2 in conjunction with § 1, paragraphs 1 and 2 of the Act to Introduce the Civil Code (EGBGB) as well as our obligations under § 312e, paragraph 1, sentence 1 BGB in conjunction with article 246, § 3 EGBGB. In order to meet the withdrawal deadline, timely dispatch of the withdrawal or the item suffices.

Withdrawal is to be addressed to:

Xirra GmbH

Deutschherrnstr. 15-19
90429 Nürnberg

Fax: +49911/70100039
e-mail: info@xirra.net

Consequences of withdrawal

In the event of valid withdrawal, performance received by both parties must be returned and, where applicable, benefits enjoyed (e.g. interest) must be surrendered. If you cannot return the performance received to us, fully or partially, or only in deteriorated form, then you must to that extent eventually provide compensation of its value. This does not apply with the handover of items if the deterioration of the item is exclusively due to its examination, as would eventually have been possible in a retail store. For deterioration caused by proper use of the item for its intended purpose you need not provide any value compensation. Items that may be sent as parcels must be returned at our risk. You must bear the costs of return if the item delivered corresponds to the item ordered and if the price of the item to be returned does not exceed the amount of 40 euro or if you, where the item’s price is higher than that, at the time of withdrawal had not paid the equivalent value or made a contractually agreed down payment. Otherwise, return is for you free of charge. Items that cannot be sent as parcels are picked up from your address. Obligations to reimburse payments must be fulfilled within 30 days. The deadline begins to run for you upon dispatch of the declaration of withdrawal or the item and for us with their receipt.

Special notice:

There is no right of withdrawal with remote selling contracts for delivery of merchandise produced according to customer wishes or clearly tailored to personal needs.

Your right of withdrawal lapses early if your contract interlocutor began with performance of the service with your express consent before the end of the withdrawal deadline or if you arranged for this yourself (e.g., by download, etc.).

End of the advisory notice of withdrawal.

8. Liability

8.1. For indirect damages, consequential damages and lost profits due to technical disturbances and problems inside the internet, and thus outside the control Xirra GmbH, we do not assume any liability.

8.2. In relation to contractors under § 14 BGB we are not liable for slightly negligent breach of significant contractual obligations. This does not apply in all cases of personal damages nor under the provisions of the Product Liability Act.

8.3. For indirect damages and consequential damages as well as for lost profits we are only liable in relation to contractors in case of deliberate intent and gross negligence. In that case our liability is limited to contractually typical and predictable damages.

8.4. In relation to consumers, under § 13 BGB we disclaim our liability for slightly negligent breaches of obligation provided that the latter are not significant contractual obligations, do not relate to injuries to life, limb or health or guarantees or if no claims are affected under the Product Liability Act. The same applies to breaches of obligation of our auxiliary agents.

9. Term of the contract and rescission

9.1. The contract is entered into for an indefinite period of time. The minimum term of the contract is one month unless otherwise agreed between the parties.

9.2. The contract is automatically extended by one month at a time at the end of the minimum contractual term unless it is rescinded by one of the contract interlocutors with advance notice of 30 days as of the end of a calendar month.

9.4. Rescission may only be in writing or by fax. If there is any lack of clarity resulting from rescission by fax then Xirra GmbH is entitled to demand written rescission from the customer. The rescission declared by fax is then invalid.

9.5. The right of each contract party to rescind the contract with immediate effect for cause is not prejudiced by this. Justified cause is for Xirra GmbH in particular any case in which

– the customer is in arrears with payments of the agreed fee for two successive payment dates or if the customer in a period of time extending over more than two payment dates has come into arrears with payment for an amount equivalent to two payment dates.
– the customer breaches significant contractual obligations, in particular the contractual obligation when using the contractual services of Xirra GmbH of complying with law, and does not immediately desist with such a breach after warning notice or notification by Xirra  GmbH about blocking of contents.

10. Regulations for resellers

10.1. The customer is entitled to grant third parties usage rights to services provided by us by contract. In such a case, however, the customer remains our contract interlocutor. The customer is obliged, to pass all contract terms emerging from the Standard Business Terms and the order forms on to the third party by way of a contract between them and to oblige the third party to comply with those terms.

10.2. Where for modifications of all kinds cooperative acts by the third party are required then the customer must ensure by a contract between them that such cooperation obligations are met. The customer must on demand inform Xirra  GmbH and the third party and its contact interlocutor. In case of changes, Xirra GmbH is entitled to directly approach the third party to demand written consent for the changes from the latter.

10.3. If the third party breaches contractual obligations, does not comply with cooperation obligations or if any other problems emerge in granting usage rights to third parties then the customer is liable for all damages resulting from this. In addition, the customer is obliged to hold Xirra GmbH harmless against all claims which either the third party or anyone else brings against Xirra GmbH.

11. Data privacy

Xirra GmbH collects, processes and uses personally related data of a user without further necessary consent only to the extent such data are required for establishment of a contract and for its discharge as well as for billing purposes. More information can be retrieved online at www.xirra.net/datenschutz. www.xirra.net/datenschutz/abrufbar.

12.  Court venue, applicable law

12.1.Venue of fulfilment for all services under this contract is Nuremberg. Where legally admissible, the venue for legal action is Nuremberg.

12.2. For contracts signed by Xirra GmbH on the basis of the Standard Business Terms and for claims of all kinds deriving from them the law of the Federal Republic of Germany is exclusively applicable, with the provisions of the United Nations Convention on the International Sale of Goods expressly barred.

13. Final provisions

Should any provision of these Standard Business Terms be invalid the contract remains otherwise valid. In lieu of the invalid provision the relevant statutory regulations will apply.

State: July 2021