Terms and conditions
The following terms and conditions (Terms) shall apply to all contracts of company Phobyx GmbH&Co.KG, Germany (hereinafter referred to as Provider) with its Customers (hereinafter called User)
The Provider operates servers that are constantly connected to the Internet. Internet services, as specified within these terms and conditions, are services that are directly connected to the internet using the servers operated by the Provider.
These Conditions shall apply exclusively. Confirmation to the contrary and/or to the terms and conditions of the business by the User, if any, are expressly prohibited.
Amendments to these terms will be communicated to the User. Amendments to these Terms automatically become contractual if the User does not object within one month.
Should the User object to the conditions - as set out by the contract - so the Provider is entitled to terminate the contract at that time and adjust the provision of services on which the changed or amended terms take effect.
1. Services offered by the Provider, prices and special offers
The Provider agrees to provide as published on the internet range of services offered, either through its own services or (at the discretion of the Provider) through the provision of third party services. All services offered are only current at the actual time of ordering. Special services not offered as default tariffs by the Provider will be detailed by the Provider in accordance with a prior consultation.
Special services are charged on a time basis with fixed hourly rates. Additionally, the Providers own expenditure, necessary for the provision of the aforementioned services, will be included in the bill. Where cost accounting - on the basis of actual services used - illustrates usage of a temporary nature, the User is entitled to a monthly account settlement. The aforementioned account should clearly state the time allocated to the provision of services by the Provider and the type of services used.
The Provider shall provide technical support via email, online consultation, or in the case of complex requests, by phone (hotline). The technical support offered by the Provider does not bind the Provider contractually. Rather it is a voluntary service offered by the Provider, and should be viewed in the context of the professional and time based resources that the Provider is able to make available at the time of request. A legal right to access certain support services at a particular time of day or night, or in regards to a particular query does not exist. Please note that the provision of free services offered by the Provider (e.g. e-mail addresses) require a notice period of at least one week. Reimbursement or compensation claims may not arise from this.
For the use of an offer, the User must pay the full amount for the period due, usually one month in advance. The same applies should the User wish to have the license period extended. In circumstances where only a specific part of the month requires payment, this payment will then be calculated at the daily rate of 1/30 of the total monthly bill. Payment is only possible by direct debit, debit or bank transfer. Payment by Pay-Pal is considered as a bank transfer. Unless otherwise agreed, the Provider charges an additional fee of £ 1.50 for direct debit or debit different payment methods. Unless otherwise stated on the invoice, all bills are to be paid within 14 days of delivery.
If the User is in arrears with a payment due, the Provider is entitled to block all access to the server and its agreed upon services until such time as the account has been settled, alternatively the Provider is also entitled to terminate the contract immediately and without warning and delete all stored data pertaining to the User. In addition, the Provider may, in the case of defaulted payments, require reimbursement (from the User) for all additional costs incurred. Please note this may also include a subsequent claim for damages.
To unlock a blocked account an administration fee of £ 20.00 is payable to the Provider.
In the case of payment by direct debit, any additional costs incurred (as a result of defaulted payments on behalf of the User), are required to be reimbursed fully to the Provider.
2.2 Internet services which have the use of a prepaid server (pay as you go), require, due to the nature of the service, that the User pays in advance. Therefore the use of any internet services when used in connection with a prepaid server, require that sufficient credit exists on the users individual credit account ("Credit Account").
2.3 Fees will be deducted from the prepaid debit account in accordance with the actual prepaid services used. A minimum usage fee exists for all prepaid Users. Should a prepaid debit account contain insufficient prepaid credit to pay for current internet usage, all internet services will be disrupted immediately.
2.4 Advance payments for the prepaid server can be made by User, subject to payment method availability, by the following means: (a) by phone call(toll number), (b) by bank transfer supported by directebanking.com, (c) by credit card of types specified by the provider, (d) by PayPal or (e) by other online payment methods offered by the provider.
2.5 A payment will be unable to be processed should a User neglect to specify the intended use of a payment made and/or specify a false use/purpose.
2.6 Should the User enter incorrect information or contact information ( especially other Users contact details, allocated user names, or email addresses) for the use of the prepaid server, it can not be excluded that the aforementioned Users (or persons to whom the falsely entered information applies) may use the recharge amount. In this case, the Provider is not liable to reinstate any credit lost and may only, if informed by the User within a sufficient time period, reimburse the User any unused credit remaining on the aforementioned account. In order for any unused credit to be reimbursed, the User must report to the Provider all details relating to the misrepresentation of the payment within a timely fashion.
2.7 A statement will be made available to the User detailing all charges relating to a prepaid account (payments made by bank transfer / cash deposit or credit card) upon written request only. A processing fee of 2, -EUR will be required for all statements. It is not possible for a statement to be made available to the User should more than 30 days have elapsed since the last account re-charge.
2.8 It is possible for the User to query the balance of his/her prepaid server account balance through the Provider.
2.9 The User may raise objections to the withdrawal of amounts from his/her prepaid account only within one month directly following each withdrawal.
3. Third party obligations of the User relating to intellectual property
The User agrees irrefutably, that through the use of all agreed upon services, he/she does not contravene against either British nor any other International law, in particular those pertaining to copyright, data protection and competition law.
The Provider will attempt, wherever possible, to refrain from saving on to its servers, any websites, content or other data which may appear questionable in this respect.
The Provider will attempt to inform the User immediately, wherever feasible, of any possible deletion and/or suspension of an account. The same applies if the Provider is requested by a third party to modify or delete contents of an account because they violate the rights of others.
The Provider is irrefutably deemed to be not liable - by the User - for all and any third party claims based on inappropriate content or data belonging to the User (also valid and pertaining to the case of any subsequent resellers and their Users).
It is also explicitly pointed out that any cross-references (links) to third party sites with illegal content, may result in the criminal liability of the User.
The User is required to inform the Provider immediately of any legally questionable content. In such a case, the Provider is entitled to prevent the publication of such content via its internet servers.
Insofar as the Provider is subject to provide and/or procure and/or maintain internet domains, it is liable to act as a mediator for NIC and/or any other organization responsible for domain allocation.
The Provider has no influence whatsoever in regards to domain registry. Therefore the Provider provides no guarantee that the domains applied for by the User are free from all or any third party rights, that they are unique or that they will permanently endure. This also applies for sub-domains operating under actual domains provided by the Provider
If the User is requested by a third party, to submit an internet domain because it has infringed the rights of others and/or is illegal, he/she will inform the Provider immediately. Respectively the Provider will inform the User immediately, wherever possible, should the Provider have been requested by a third party to block and/or submit a domain belonging to a User. In both cases, the Provider is authorized to act on behalf of the User in all regards pertaining to abandonment of an internet domain. The User irrefutability releases the Provider from all and any liability regarding third party claims based on the unauthorized use of an internet domain.
5. Data protection and data security
5.1 Personal Data (Privacy)
The User agrees that all personal data and other information (such as usage statistics) may be saved by the Provider during the term of contract, to all and any extent necessary in order to fulfill and fully comply with the conditions as set out by the contract, in particular those pertaining to the purpose of billing. The (legal) obligation to disclose data to authorities and/or other authorized bodies is not affected. Similarly, the right to forward personal data (belonging to the User) to debt collection agencies remains unaffected, so long as these require the aforementioned data in order to ensure delivery of their services.
Upon request, the Provider will make visible any and all data saved on its servers which pertain to a User.
5.2 Users own data on the servers (data security)
The User is aware that privacy in open networks like the internet, simply cannot be guaranteed by the Provider. The User is also aware that, from a technical perspective, the Provider is able to access data stored on its servers at any time. Other internet users may also be able to gain unauthorized access to the servers of the Provider and thereby obtain data belonging to the User. It is the Users sole responsibility, and in no case the responsibility of the Provider, to ensure the security of any and all data transmitted by the User onto the internet.
Any possible product or service offering data backup by the Provider must be seen as a strictly supportive measure. It is the sole responsibility of the User to ensure adequate backups exist for his/her data.
6. Updating personal information
The user shall notify the Provider immediately of any change of name and/or company name, place of residence or business location, billing address, email address as well as any changes relating to his/her person (e.g. inheritance). For failure to notify the Provider in regards to any of the above mentioned changes, the Provider is entitled to, after a warning has been issued to the User, terminate the Users contract without notice.
7. Contract period and Cancellation.
The contract may not be cancelled - unless otherwise agreed - if it has been current for less than one (1) full calendar year. For the cancellation of flat rate contracts operating within a specified time period, four (4) weeks notice is required. Thereafter the contract will automatically be renewed for a period of one (1) year, or if applied to a flat rate contract, for the exact time period specified by the individual contract, unless cancelled within the above specified minimum notice period of four (4) weeks.
All contract cancellations must be received in writing, unless explicitly accepted by the provider (e.G.cancellation via password protected client area) For security reasons the Provider does not accept cancellations by email.
The right of the Provider to cancel a contract immediately (without notice), due to contractual infringements on behalf of the user, remains unaffected. This may apply in particular to situations where the User has, knowingly or unknowingly, provided a third party with access to unauthorized service related data or login details.
If previously agreed upon within the contract, the Provider grants the User the right to sublease his/her web-space at the Users own discretion to third parties.
9. Limitations of liability, warranty and acts of god.
The Provider is not liable for any legal consequences pertaining to either the registration of Domains or, the User owned data stored on its servers.
The User should be aware that the use of legally protected names and/or trademarks may have adverse legal consequences.
The Provider does not guarantee that any of its services offered will be permanently available. The services provided rely on the availability of web-space and/or software. For any interference's experienced while connected to the internet, the Provider assumes no liability.
The Provider accepts no liability for damages incurred by independent contractors, except in the case of significant contractual breaches, where it can be proven that the Provider and/or its legal representatives are accountable for gross negligence. For all other agents, the Provider is only liable for damages should it be proven that essential contractual obligations have breached, through either intent, or gross negligence.
Except in the case of proven wilful misconduct or gross negligence on behalf of the Providers legal representatives, executives or other agents, the Provider accepts no liability for indirect damages incurred, especially for lost profits.
Except for proven cases of willful misconduct or gross negligence on behalf of the Provider and/or its legal representatives, any liabilities in regards to typically foreseeable damages are contractually limited.
The Provider shall only accept liability for damages incurred by the User where gross negligence or intent are able to be proven. In the case of breaches of contract, debtors default or failure to provide services,
The Providers liability in regards to negligence on behalf of its legal representatives, employees and other agents is limited contractually to foreseeable damages only.
The above mentioned exclusions and/or limitations to companies and/or Users do not apply in the case of explicit guarantees provided by the Provider for damages and/or injury to life, limb or health, or in regard to mandatory legal regulations.
All liabilities and compensations are limited to the value of the individual contract. The User irrefutably frees the Provider from all third party damages claims caused directly or indirectly by the User.
Acts of violence (such as war, strikes, riots, acts of nature) entitle the Provider to postpone and/or delay provision of its services for an unspecified time. The Provider shall not be liable for any damages claims or reimbursements arising from this.
10. Storage of access data (login credentials, e.g. passwords)
The User is liable for any costs incurred through third party usage of his/her access data.
The User agrees to protect carefully any access data and/ or any personal passwords allocated to him/her for access to User reserved server space, backup files and/or any other contractually covered service offered by the Provider against access and/or abuse from third parties. Furthermore the User agrees to change his/her automatically assigned passwords immediately after their first use. The User is liable to the Provider for compliance with the aforementioned obligations. The User irrefutably releases the Provider from all and any claims or costs incurred due to violation of the aforementioned obligations.
11. Performance, jurisdiction, applicable law
ATTENTION: All contracts between the User and the Provider are subject to German law.
The place of delivery for all contractual obligations pertaining to Provider as well as those pertaining to the User is Skegness, Lincolnshire.
It is agreed between the User and the Provider that the place of Jurisdiction for all contractual and/or legal issues is Oldenburg(Oldenburg), Germany.
The provider is entitled to transfer the contract and all rights and obligations to a third party.
It is not permissible for the User to assign or otherwise transfer to a third party any claims against the Provider.
The provider has the right to transfer this agreement in whole or in part, to a third party, so long as the provision of services remain in accordance with the terms as set out by this agreement.
The User may offset claims made by the Provider only with undisputed or legally established claims.
Should one or more provisions, as set out by these terms, and/or completed individual agreements (in whole or part) become invalid, this shall in no way affect the validity of the remaining provisions.
End of the terms and conditions