General Terms of Business of Peering GmbH
Participation in ECIX
Article 1: Validity of the terms
1) A contractual relationship with respect to all services and works provided by Peering GmbH - hereinafter collectively "the services" - is established exclusively on the basis of these General Terms of Business, provided the contracting party is a business owner, a legal entity under public law or a public law special fund. These General Terms of Business apply to all future commercial relations with the contracting party, even if they are not expressly agreed again. These terms are deemed to have been accepted at the latest with the initial performance of service. Any counter assertion or legally binding declaration of the counterpart - hereinafter "the Participant" - having regard to its business or purchasing conditions is hereby rejected.
2) Any exceptions to these General Terms of Business must be in writing, agreed to and signed by both parties. This also applies to any waiver of the written form requirement. If the law requires a stricter form, it must be complied with.
3) The representatives of Peering GmbH are not authorised to conclude any oral agreements or to give verbal assurances.
4) Peering GmbH, if objectively justified, is entitled at any time to change or to supplement these General Terms of Business, including any annexes, such as conditions of use and service descriptions. The reason for a change could for example be a change in the law, a judicial ruling of a Court of law or market conditions. Changes will be notified by Peering GmbH to the Participant in writing. If the Participant does not object to the changed conditions within four weeks of receipt of the notification of change, they will be effective as announced. Peering GmbH will notify this legal consequence to the Participant separately in writing. If the Participant objects within the prescribed period, the contract will continue unchanged. As an exception to article/ clause 3.1, Peering GmbH is in this case entitled to cancel the contract within a period of six months from receipt of the notice of objection.
Article 2: Conclusion of the contract
1) The contract for service to be provided by Peering GmbH in each case is executed by corresponding statements by Peering GmbH and the Participant. The statements can be made after appropriate authorisation by Peering GmbH respectively in writing, by fax or by e-mail or by using a corresponding online web form. In the absence of a statement of acceptance by Peering GmbH, the contract is concluded at the latest with the provision of contractual services by Peering GmbH. Actual use of the services provided by the Participant is immaterial.
(1) Drawings, pictures, documentation, advertising statements or other service data are merely indications. Any guarantee of specific properties and/or warranties granted by Peering GmbH requires explicit written agreement in each case.
(2) Peering GmbH can make the conclusion of the contract subject to the submission of a written power of attorney or bank guarantee issued by a major German bank.
(3) If Peering GmbH uses third parties to provide the services, they are not a contracting party to the Participant. In addition no contractual relationship is established between the Participants merely because they use technical installations together.
Article 3: Term and Termination
1) The contracts under these General Terms of Business, unless otherwise provided in supplementary terms, are concluded for a period of one year and renewed for another year if not terminated in writing within a period of three months before expiry. Peering GmbH will confirm the receipt of the notice of termination.
2) The right to extraordinary termination for good reason will remain unaffected. Peering GmbH will have such a right in particular if the Participant, after the expiry of a stated period of notice or after warning or for any other good reason, including obligations under Section 5 paragraph 2) or Section 8, infringes again or continues to infringe its contractual obligations. In addition, Peering GmbH has the right to extraordinary termination, and indeed at its sole discretion or without notice, if the Participant declares that it is suspending payments permanently or if, due to a fundamental change in the legal or technical standards on the Internet, Peering GmbH cannot reasonably be expected to continue providing the services owed.
Article 4: Consequences of termination
1) On termination of the contract, the Participant will remove all items in its possession from the relevant data centre and return the premises used by it within two weeks after contract termination to their state on the conclusion of the contract.
Article 5: Scope of services/rights and obligations of the parties
1) The services of Peering GmbH are based on the agreements reached between the parties. This includes the service description, which specifies the corresponding services and rights and obligations of Peering GmbH and the Participant and determines all other contractual agreements between the parties, together with the respective annexes.
2) Peering GmbH reserves the right to change, expand and improve the performance of the services in consultation with the Participant to the extent that this is required by changed technical conditions. Restrictions are permissible to the extent that they do not adversely affect the contracted functionality.
Article 6: Falling below the service level / maintenance works
1) If the service level defined in the service agreement or other contractual agreement between the parties is not met by Peering GmbH, the Participant will receive a credit.
2) The credit rules applicable between the parties are subject to the service agreement.
3) Despite this, the maximum credit amount in each individual case shall not exceed the amount of the full monthly payment, in the calendar year the amount equal to three monthly amounts, paid by the Participant to Peering GmbH for the relevant service.
4) The Participant must assert legitimate claims in writing within four weeks after it is aware of the inadequacy of service levels. Legitimate claims will be settled with the following invoice.
5) The implementation of maintenance and/or repair work of the relevant computer centre operator and/or Peering GmbH will not be considered when determining unavailability periods. The same applies in the case of relocation under Section 7.
6) Appropriate notices of maintenance and repair work of the data centre or network operator, which can lead to a service interruption, must be forwarded to the Participant immediately on receipt by Peering GmbH. The standard maintenance window of Peering GmbH itself is on Tuesdays and Wednesdays from 03:00 to 07:00 am. Should it become apparent that maintenance or repair measures are causing a service interruption, Peering GmbH will inform the Participant of this at least two weeks prior to the operation, so far as it concerns its own measures. In the case of measures of third parties, such information must be forwarded immediately upon receipt. Peering GmbH will endeavour in this case to ensure that an appropriate notice period is still observed. In any event, Peering GmbH will endeavour for its own measures to avoid service interruptions by maintenance and repairs. Should there be service interruptions, Peering GmbH, to the extent that this is actually and legally possible, will draft a detailed report on them and make it available to the Participant. In cases where the service interruption is based on the activities of the data centre or network operator, Peering GmbH will endeavour to obtain a corresponding report.
Article 7: Relocation right
1) Peering GmbH is entitled to move the location of service provision within the data centre or to other datacentres. This measure must be carried out with a notice period of at least ten weeks.
2) Peering GmbH will also inform the Participant about the duration of agreements entered into with operators of datacentres, through which the Participants are connected to the platform. The same applies to declared contract notices or contract terminations.
Article 8: Duties and obligations of the Participant
1) The Participant is required to use the services of Peering GmbH services properly. It is in particular required
(1) to pay the agreed fees according to the valid price list plus any applicable taxes;
(2) to allow Peering GmbH to perform installation of technical equipment, if and to the extent required for the use of the services and if the installations are not made by the Participant. This also comprises the provision of any information required for the performance of the service by Peering GmbH;
(3) to inform Peering GmbH in detail on request what technical equipment is being used to participate in the services;
(4) not to abuse the right to access the services and to refrain from illegal activities;
(5) to ensure compliance with national and applicable international statutory provisions and technical or legal guidelines, security guidelines, manufacturer specifications and regulatory requirements and to obtain official authorisation, insofar as it is or becomes necessary in connection with the services provided by Peering GmbH;
(6) to bring only those items into the data centre that are required for the contractual services;
(7) to grant Peering GmbH access at any time and/or entry to the items brought in when this is necessary from the perspective of Peering GmbH;
(8) to take care that items introduced by it into the data centre are fit for the purpose mentioned and do not pose any risk of damage to the property of Peering GmbH or third parties or affect or prevent the functionality of the services provided by Peering GmbH with respect to third parties.
(9) not to interfere with objects by third parties and not to gain or seek access to (computer) systems which are not the property of the Participant outside the contractual services or to examine them.
(10) to notify Peering GmbH of any obvious complaints, defects or claims related to the services provided by it (fault report);
(11) to take within reason all measures to enable a determination of the defects or damages and their causes or facilitate and accelerate the removal of the defect;
(12) after delivering a fault message to Peering GmbH to compensate the costs incurred by the review of the facilities, if and to the extent that it is determined after the examination that there was a problem within the area of responsibility of the Participant.
2) Conditions of cooperation between the Participants may be regulated by Peering GmbH in an agreement. Infringements of provisions of any such supplementary agreement will entitle Peering GmbH, after warning, to terminate the contract without notice.
Article 9 : Terms of payment / price increase clause
1) The Participant is required to settle invoices within fourteen (14) calendar days after receipt of the invoice. Exceptions to this payment term must be in writing.
2) If there are still historic claims from the contractual relationship, Peering GmbH is entitled to deduct from any payments against the costs, then the interest and ultimately against the oldest claim.
3) If the datacentre operators from which Peering GmbH obtains its contractual services or parts thereof increase their prices to Peering GmbH, the price increase may be allocated pro rata among the Participants. Peering GmbH will give the Participant on request appropriate evidence.
Article 10: Set-off and retention rights
1) The Participant may only offset undisputed or legally established claims against claims of Peering GmbH. The Participant is entitled to assert a right of retention only for counter-claims from the respective contractual relationship with claims arising from the same contract.
Article 11: Delayed payment
1) The Participant, independently of statutory default rules, will be in arrears no later than the first day of the second month following the relevant accounting period, without there being any need for a reminder. In the event of payment default of the Participant, Peering GmbH is entitled to suspend the connection if it has announced the blockage two weeks previously, such that the relevant date for the start of the deadline will be the date of dispatch to the Participant. A suspension notice may be given by Peering GmbH to the e-mail address designated by the Participant for the administrative contact or some other e-mail address designated by the Participant. Peering GmbH is at liberty instead to give written notice. There is no need for a receipt of a notice of suspension. The Participant remains obligated to pay the agreed fee if the connection is suspended.
2) If payment is delayed, Peering GmbH is also entitled to charge, from the relevant date, interest of 8 percentage points above the base rate. The right to claim further damages will remain unaffected.
3) Should the Participant be in arrears for two consecutive quarters with the payment of fees or a significant proportion of the charges or for a period extending for more than two months after the beginning of the quarter, for an amount that reaches the quarterly base fee of one quarter in arrears, then Peering GmbH will be entitled to terminate the contract extraordinarily and without notice if it has previously given the Participant a two-week payment period and the Participant has not paid in due time.
Article 12: Confidentiality and data protection
1) Unless explicitly agreed otherwise in writing, information submitted to Peering GmbH will not be regarded as confidential.
2) Personal data, which Peering GmbH collects, processes or uses in the context of the purpose of the contract, will be treated by Peering GmbH in accordance with the relevant data protection provisions.
3) Peering GmbH is responsible for ensuring that all persons employed by it on the performance of this contract know and observe the relevant data protection regulations in their current version.
4) If stipulated in internationally recognised technical standards and not objected to by the Participant, information about participant will be made available to third parties (Directory Services, Looking Glass, etc.).
5) The Participant should note that the datacentres where the respective points of service provision are located are subject to video surveillance. The video recordings on which the persons entering the monitored areas of the data centre are videotaped are stored by each data centre operator as evidence. The Participant is responsible for ensuring that the data protection declarations of consent required for this purpose are made available from the persons entering the data centre.
Article 13: Limitation of liability for Peering GmbH
1) The contractual and non-contractual liability of Peering GmbH is limited to all or part of the services provided in connection with the contractual relationship in accordance with the following provisions. Any liability for lost profits is excluded. This is without prejudice to any liability under the Product Liability Act.
2) Peering GmbH is fully liable and without restriction only for intent or of fraudulent concealment of a defect. Peering GmbH is also liable for any contractual issue of a guarantee or quality risk cover to the Participant.
3) Peering GmbH assumes full and unlimited liability for damages arising from culpable injury to the life, body or health of any person.
4) In principle Peering GmbH is liable for any culpable breach of material contractual obligations, the fulfilment of which is of special importance for the achievement of the contractual purpose (so-called "material obligation"). Liability for simple negligence is limited to the amount of the contractually typical and foreseeable damage.
5) Peering GmbH is liable for breach of duty, which does not constitute a breach of material obligations, in principle in the same way as for gross negligence (wilful intent and gross negligence), unless it can cite trade practice to free itself from liability for gross negligence. Liability for simple negligence is excluded and for gross negligence is limited to the amount of the contractually typical and foreseeable damage.
6) Peering GmbH is not liable for simply negligent behaviour of agents. On a violation of material obligations, the liability for negligent behaviour of agents is limited to the amount of the contractually typical and foreseeable damage.
7) Claims for damages under §§280, paragraph 2 and 286 BGB (Bürgerliches Gesetzbuch) (arrears damages) are limited in level to a monthly figure.
8) Peering GmbH is not liable for failure or delay in so far as it is based wholly or partly on events of force majeure, such as strikes, lockouts and public disorder. This also applies if the force majeure affects suppliers or subcontractors or their subsuppliers or subcontractors. For the duration of these disturbances and their effects, Peering GmbH is exempt from the requirement to provide the services.
9) Liability claims expire within one year after the occurrence of the circumstances giving rise to liability, with the exception of liability for wilful misconduct.
Article 14: Final provisions
1) The place of performance is the relevant place of service. This is currently Frankfurt am Main, Berlin, Hamburg, Munich, Nuremberg and/or Dusseldorf in the Federal Republic of Germany and/or Amsterdam in the Netherlands and/or Luxembourg. The exclusive legal venue for all claims arising from and under this contract, including cheque and bill actions, and all disputes between the parties arising in respect of the conclusion, handling or termination of the contract - if the Participant is a legal entity under public law or public special fund - is the domicile of Peering GmbH.
2) This agreement is governed by the law of the Federal Republic of Germany. The application of UN purchasing law, so far as applicable here, is excluded to the extent legally possible.
3) No side agreements have been concluded.
4) The legal successor of the Participant will be bound by the obligations arising from contracts concluded on the basis of these General Terms of Business.
5) If any provision of this agreement should be or become invalid, this will not affect the validity of the remaining provisions. In lieu of the invalid provision a replacement provision appropriate or at least closely corresponding to the purpose of the agreement, which would have been agreed by the parties to achieve the same economic result if they had known of the invalidity of the provision, will be deemed to apply. The same applies to any incompleteness of the provisions.