Terms and Conditions of NeptuneLabs GmbH for the Image Hosting Services
Updated: May 2013
NeptuneLabs GmbH, headquartered in 32657 Lemgo, Germany (hereinafter referred to as NeptuneLabs) provides the ordered Internet service to the customer; including all further components and any additional delegated services (hereinafter referred to as Image Hosting Service) solely to the following Terms and Conditions.
§1 Scope, Applicability
(1) Contents and scope of all these services arederived from the respective service descriptions and the agreement between the parties.
(2) Agreements on additional services, reduced fees (discounts) or other agreements not mentioned in the General Conditions or agreements require a written form.
(3) Information from the general Terms and Conditions, price lists and any additions in the order form, is referred to as “Customer Information”.
§2 Scope of services, fees
(1) All orders require a correct and complete entry of all necessary data to become effective.
(2) The scope arises from the customer information’s,however they are linked resp. connected with the ordering form or the order.
(3) The use of the image-hosting service is subject to the charges under the applicable contract. The customer will receive an electronic invoice for each payment transaction.
(4) NeptuneLabs reserves the right to amend the charges at the beginning of a new billing period. Amendments will be published by NeptuneLabs in a separately downloadable price list. The customers will receive notification of this by e-mail- or to his postal address within 4 weeks, before the amendment becomes valid. An increase in charges grants the customer an extraordinary termination right to the end of the set date. Any at the time of ordering known increases in fees (such as the expiry of any temporary reduction of combined offers) do not require a separate notice and do not justify special reasons for a termination.
(5) The method of payment is noted in the price list for each product and country and is seen as accepted. NeptuneLabs may at any time and unannounced add new payment methods and remove existing ones.
(6) Credit card payments are subject to the conditions of the credit card institutes.
(7) If payment by direct debit is agreed, then the customer authorizes NeptuneLabs, as on the order specified, with the withdrawal of incurred charges from a current account. The authorization extends to subsequently incurred and variable fees or other commissions and new bank connections, notified by the customer. The monthly fee will be charged in advance, but not before the first of a month.
(8) One-time fees, provision of charges, variable charges and purchase prices for other products will be withdrawn with the provided service or immediately before delivery.
(9) Incurred charges for data traffic, exceeding the customers free contingent, will be charged the following month.
(10) The customer is responsible for the custody of the access he has, together with associated data (password, etc.) on the services of NeptuneLabs. The customer is also liable for payment of charges, for services used by third parties (syndication), causing additional usage costs (Traffic). It is his duty to ensure and to prevent no unwanted syndications. Liability cannot be transferred to NeptuneLabs.
(11) In this connection, the customer is committed to protect the personal password for his access-identification and keep it in an inaccessible place, away from misuse and loss. NeptuneLabs cannot be made responsible for any costs and third party claims resulting from a violation of any aforementioned obligations.
(12) NeptuneLabs begins with the Image-Hosting Service once the first direct debit or any other payment process has been conducted.
(13) Counterclaims of the customer against NeptuneLabs can only be undisputed or legally valid.
(14) In case of late a payment, NeptuneLabs charges for the first and second reminder and fines for each unauthorized debit processing fees, the amount of 10 Euro. NeptuneLabs can disconnect an access due to a delayed payment and charge a fee of 10 Euro before carrying out the re-connection of the access.
§3 Provided contents, programs and data
(1) Under the Image-Hosting Service by NeptuneLabs, accessible contents, text, pictures and sounds materials and programs are usually copyrighted. The customer may use such materials, provided by NeptuneLabs, to design their own Internet contents for the duration of the contract under a through NeptuneLabs led internet address and also use these contents, personalize or modify them. Any other use (including copying, sale and transfer to a third party) is only permitted with written approval of NeptuneLabs or the respective holder of rights.
(2) NeptuneLabs is liable for the accuracy, correctness, desired functionality and completeness of the Services only in the coverage of liability under paragraph 13. NeptuneLabs is not responsible for contents, which are not on their own NeptuneLabs servers and can – without prejudice to paragraph 13 – not be made responsible for these contents.
(3) So-called log files are stored on the server, in order to compile statistics. An analysis of log files by NeptuneLabs is only for the purpose to provide the client with centrally processed condensed statistics, according to the customer information. An additional storage and use by NeptuneLabs is excluded.
§4 Arrangements for self-created content resp. transferred contents
(1) The customer agrees to provide, for his business, the name and address as well as associations of persons and groups, including the name and address of the representative (legal requirement under the Telemarketing Act).
(2) The Customer guaranties that the contents do not break any laws. Furthermore, the storage of pornographic, extremist (particularly right-wing) or morality offending contents within the image-hosting service is not allowed. NeptuneLabs is authorized, to block any aforementioned contents without further notice until the legality has been proven and to delete after a final decision on the illegality has been made. NeptuneLabs will immediately notify the customer about a blocking. If a customer ignores a warning against these conditions, NeptuneLabs is entitled to end the contractual relationship without previous notice.
(3) NeptuneLabs reserves the right to suspend or to prohibit any contents, which may disturb the normal operation or the safety behaviour of the server. NeptuneLabs also reserves the right to suspend or to prohibit any offerings by the customer without warning, if the customer’s own programs as part of his offer, which may disturb the normal operation or the safety behaviour of the server.
§5 Responsibility for the content of the Customer
(1) The customer is responsible for all produced or published contents on his Image Hosting Service, using his access code or by third parties. A general monitoring or verification of such contents is not provided by NeptuneLabs.
(2) Due to the nature of the service offered, NeptuneLabs cannot prevent the retrieval of images, which the client has added to the service. This is basically available to third parties without knowledge of the access data of the hosting accounts. It is therefore the client’s responsibility to only include such images to the service, to which he is entitled and agrees to publish (up to the resolution of the uploaded original image).
(3) NeptuneLabs does not review the contents of clients, also whether claims of others are or are not justified. On the internet it is common, that requests of any credible third party to close resp. block data are met, until a court clarifies and announces a verdict. The customer agrees to restrict access to his contents in case rights of a credible third party are claimed.
(4) Should NeptuneLabs have to block an account for any reasons mentioned in paragraphs 4 and 5, the customer still has to meet his liabilities towards NeptuneLabs. The customer agrees to accept any measures that NeptuneLabs has to take in order to perform all court rulings and decisions. The customer frees NeptuneLabs of any in the paragraphs 3 to 5 and also from third party claims, all arising costs and ensuing disadvantages.
§6 Data Security and Online Transfers
(1) Whenever data is transmitted to NeptuneLabs – in whatever form – the client is advised to make copies for own safety. In the unlikely event of data loss, the customer is obliged to upload the data to the NeptuneLabs server, free of charge. A backup of the data on the NeptuneLabs servers is not part of the service provided, unless this is stated otherwise in the price lists and quotations given.
(2) Various custom settings of the Image Hosting Service will be established online. The transfer of such data over the Internet is at risk of the customer, without guarantee of NeptuneLabs. The messages are as received and will be valid and used for service accomplishment until NeptuneLabs receives new data via the Internet. Occurring delays are of a technical nature and outside the responsibility of NeptuneLabs and therefore no deficiency.
§7 Sending and receiving e-mail messages
(1) The customer agrees that NeptuneLabs and their cooperation partners can use the customers e-mail address to send information up to a reasonable extent. To differentiate such e-mail, they are marked in an appropriate manner.
§8 Contract beginning and end
(1) A contractual relationship between the customer and NeptuneLabs is declared on the day the access code is activated. This day represents the beginning of the contract and settlements, regardless of the date of payment.
(2) The customer and NeptuneLabs can cancel the contractual relationship without stating any reasons, when adhering to the designated deadlines stated on the respective order and in the appropriate customer information.
(3) Both parties also reserve the right to an extraordinary termination for cause. An important reason lies in particular in the following cases:
(a) the customer is behind schedule for payment for two consecutive months, or is in arrear with a considerable part to NeptuneLabs, or
(b) the customer is more than two months in arrear with a payment, which amount is the average of two months.
(4) A termination must be in writing by letter or fax. A termination for cause, because of the urgency can alternatively be sent by e-mail.
(5) NeptuneLabs can terminate, anytime within a period of 30 days, services free of charge or value added services, which were also free of charge. A notification of the termination via e-mail is sufficient.
(6) The customer may, on request, change within the respective product category to another Image Hosting Service with a different tariff, so far available and technically feasible. A change to a service with a cheaper fare is only possible to the end of the prepaid period. The move to a service with higher tariff is possible at any time. The advanced services are provided as soon as possible, the calculation of the tariff increase will take place from the date of the changeover. NeptuneLabs can also withdrawal the claims resulting from a change of tariff by means of direct debit. Credit notes will be settled against future goods and services. The prospective period of notice for the newly selected Internet service is specified in the customer information.
§9 Specifications: availability, maintenance
(1) In general, the image-hosting services are available 24 hours a day, seven days a week. NeptuneLabs guarantees the availability-class as stated in the customer information. The HRG-class of AEC-0 is seen as agreed, should the customer information or order not mention any availability-class.
(2) The replacement of defective hardware, if not regulated differently in the customer information, goes to NeptuneLabs charge.
§10 Technical Consulting, Server
(1) The technical advice via e-mail and hotline is ensured in the customer information in the designated coverage. The telephone hotline can normally be reached weekdays between 9:00 and 16:30. E-mails are received 24 hours a day.
(2) NeptuneLabs reserves the right to charge a fee based on support services as referred to in 10.1 of the current price list, provided the support services go beyond the remedy a performance failure.
(3) The customer has no entitlement to a separate physical server for his contents or his assigned dedicated bandwidth (capacity for data traffic), unless specified otherwise. The service is provided on powerful central computers (servers), due to necessary costreduction, with a for the particular server available total bandwidth, allowing slight fluctuations to the customers actual available bandwidth.
§11 Impairment of performance
(1) NeptuneLabs warrants for the goods supplied, by providing wholly or partly free improvements or replacements. In case two attempts to amend or subsequent deliver fail, the customer may request a reduction of payment or at his discretion rescind the contract.
(2) Insofar as from these general terms and conditions do not permissibly results in another, NeptuneLabs must eliminate disruptions of access to the ImageHosting Service in the scope of the technical and operational capabilities, without delay. The customer is committed to immediately communicate any identifiable disorders to NeptuneLabs, in writing or by e-mail (malfunction report).
§12 Reservation of proprietary rights, loan relinquishment
(1) Delivered goods remain up to the entire payment of the purchase price the property of NeptuneLabs.
(2) The licensed hardware and software may not be modified, altered, resold, lent or pledged. If the hardware and software cannot be returned, NeptuneLabs is then entitled to a reasonable compensation of up to the list price of the product. The customer will delete and not use any copies of authorized software even after termination of the contract.
§13 Liability and compensation claims
(1) NeptuneLabs is only liable for damages resulting from NeptuneLabs, their legal representatives or its vicarious agents, caused grossly negligently or intentionally, unless NeptuneLabs violated an essential contractual obligation. The aforementioned liability limitation concerns contractual as well as non- contractual claims. This does not affect the liability under the Product Liability Act and at a slightly negligent violation of life, body and/or health.
(2) Except for wilful and / or gross negligence or breach of a contractual obligation, the liability is heightwise limited to the typically foreseeable damage when signing the contract. This does not affect a slightly negligent violation of life, body and / or health. The amount of the liability is limited for each product (hosting package resp. server) to the total of each monthly payment, but no more than the contract value for two years. In each case, the total liability per customer and damage is limited to 4,000 Euro.
(3) The use of the image-hosting services shall be in accordance with the limitation of Paragraph 13.1 and 13.2. This refers in particular to the functionality of contents and software, which can be loaded resp. activated via the Image Hosting Service.
(4) NeptuneLabs is not liable for the correct function of infrastructure or transmission path of the Internet and it is not the responsibility of NeptuneLabs or its vicarious agents, unless, exceptionally, any liability under Section 13.1 and 13.2 exist.
(5) All claims for compensation shall be barred after a period of one year from the knowledge of the event. This does not apply to the intentional conduct of legal representatives, employees or agents of NeptuneLabs. This does not apply to contractual claims of the customer from the use of TelecommunicationsServices to the public in accordance with paragraph 40 of the Telecommunications-Act, which according to paragraph 8 sentence 1 Telecommunications- Customer-Protection-Regulation has a two year limitation period.
(6) In the area of Telecommunications-Services of NeptuneLabs, the coverage remains for the Telecommunications-Customer-Protection-Regulation (T-C-PR), the liability limit of paragraph 7, section 2 of the T-C-P-R by the aforementioned regulations untouched.
(7) The customer excuses NeptuneLabs of any third party liability claims, caused by illegal activities of one of the client’s server.
§14 Special regulations for Reseller
(1) The customer may only with a separate, written agreement from NeptuneLabs, make his access, hosted software and service commercially available to third parties. This is in particular for sub-leasing of the software.
(2) In the case of an unauthorized sub-leasing, NeptuneLabs is entitled to an extraordinary termination regardless of any termination periods.
(3) Is there a permission to sub-lease; the customer shall remain the sole contractor of NeptuneLabs. He has to integrate the end user in contracts to the necessary extent, to the rules of the order, these terms and to commit to participation. The customer will replace NeptuneLabs all damage and shall free NeptuneLabs from all claims and other interferences, which may arise when aforementioned regulations are not complied with or the end user participation requirements are not met.
(4) The image-hosting services include services, which may be separated or divided from the customer to multiple parties (end users), which may be resold. Such a de-integrated marketing solution needs the prior consent of NeptuneLabs, not only for reasons of legal certainty.
(1) NeptuneLabs requires for a meaningful use, operation and further development of the service, some data of the user. NeptuneLabs raises, processes and uses personal data of customers, so far as the justification, content and changes of the contractual relationship is required (inventory data).
(2) NeptuneLabs collects, processes and uses personal data of customers, whilst they use the services offered by NeptuneLabs, so far this is necessary to offer the user these services (use data) or to invoice the use of these services (payroll data).
(1) NeptuneLabs is entitled to delegate third service providers and agents with the performance of services, partially or the complete service portfolio. NeptuneLabs is entitled to change the used Internet- infrastructure and the implementation of responsible service providers and agents, at any time and without further message, as long as the customer is not disadvantaged.