Terms of Trade

These Terms of Trade are the Basis for all Quotations, Contracts, Deliveries and Services to take place between Fernfabrik Matt Herriott e.K. and customers and suppliers of Fernfabrik Matt Herriott e.K.

1.a) At the latest through Acceptance of a Quotation; Confirmation of these Terms (and Conditions); via an Onlineformular or E-Mail; the Confirmation of a Quotation, or a component of these Terms (and Conditions); the counter-signature of a contract; the acceptance of product or the approval of service is it deemed that these Terms (and Conditions) are considered as accepted.

1.b) Conflicting business or purchase conditions pertaining to the buyer in regard to these Terms (and Conditions) will only be accepted, when explicitly and in written form agreed upon. Additional changes to a contract are not valid unless they have been confirmed in written form by Fernfabrik Matt Herriott e.K. 

1.c) For subsequent transactions with merchants and legal persons under public law, these terms and conditions apply even if they are not referred to expressly or in the contract.

2.) Quotations, Goods and/ or Services and Scope/ Completion of Orders

2.a) All Quotations from Fernfabrik Matt Herriott e.K. are subject to change and confirmation and are non-binding.

2.b) The Commissioning of an Assignment is only binding, if confirmed by Fernfabrik Matt Herriott e.K.

2.c) The scope of contractual services rely upon the underlying offer or contract and its annexes.

2.d) In the case that Fernfabrik Matt Herriott e.K provides free services, at any time a refund or claim for damages resulting from the provision of the services can be claimed or made.

2.e) For service contracts with Fernfabrik Matt Herriott eK the contract is regarded as the implementation of the agreed service and not a particular success, unless expressly agreed upon in individual cases with a definite success as a determining part of the contract.

2.f) Fernfabrik Matt Herriott e.K. must not accept subsequent changes or an increase in size of an Order. If this happens however, Fernfabrik Matt Herriott eK in absence of other agreements, is permitted to charge accordingly. 

2.g) Fernfabrik Matt Herriott e.K. ist entitled, in the case of needing to meeting contractual obligations in whole or in part, carefully selected and monitored agents. In this case the agents are not contractually bound to the customer.

3.) Completion and Delivery Dates, Incomplete Goods and/ or Services


3.a) In all correspondence and contracts stated completion or delivery dates are not binding when the liability has not been specifically agreed upon in writing.

3.b) Fernfabrik Matt Herriott e.K shall not be held liable for delays that can not be avoided, especially not for unforeseen delays due to the force of nature, technical problems such as equipment failure or labour disputes.

3.c) Fernfabrik Matt Herriott e.K. is in every instance entitled to payment for part provision of an order.

4.) Prices


4.a) Changes which differ from the original contract can, are and may be subject to additional charges. 

4.b) All prices shown by Fernfabrik Matt Herriott e.K.are brutto, inklusive of Tax (VAT = MwSt)

4.c) All Prices are calculated in Euros.

5.) Terms of Payment, Default in Payment

5.a) All invoiced amounts are payable immediately, unless otherwise agreed. Payments shall be remitted in advance or by direct debit to the account of Fernfabrik Matt Herriott eK. before the delivery of goods or services can take place.

5.b) Discounts will not be automatically granted and will not be given in every instance.

5.c) Once the original payment deadline has passed Fernfabrik Matt Herriott eK is entitled to charge default interest at a rate of 2% above the rate of the Deutsche Bundesbank. Further claims shall remain unaffected.

5.d) The customer may only make claims that are recognised or are legally established.

5.e) Payment of an Invoice will only be accepted through Bank transfer or Direct debit to the business account of Fernfabrik Matt Herriott e.K. Other methods of payment - in particular exchange, barter, payment with property or assets or the transfer of claims to third parties will not be accepted.

5.f) In the case that payment has not been made within a 30 day period after the date specified in the relevant invoice for payment, Fernfabrik Matt Herriott eK has the right to end the contract. Furthermore Fernfabrik Matt Herriott e.K. has the right to to terminate or freeze any other agreed upon service or delivery of product without giving notice.

5.g) For Payment reminders an extra 5,00 EUR will be charged.

6.) Ownership and Delivery Risks

6.a) Fernfabrik Matt Herriott e.K. retains full ownership of goods and services until those goods and services have been completely paid for by the customer.

6.b) In the case of open/ unpaid invoices product may be held as security for any outstanding balance. This does not result in the cancellation of a contract.

7.) Limits of Liability

7.a) Fernfabrik Matt Herriott e.K.is liable to the customer only when the following provisions apply:

7.b) Compensation claims from the breach of the contract by the customer and/ or from the breach of obligations in contractual negotiations are not possible, Fernfabrik Matt Herriott eK is not liable for lost profits, lost savings, damages resulting from claims by third parties and/ or any other indirect or consequential damages.

7.c) Damage claims by the customer due to delay or poor performance by Fernfabrik Matt Herriott eK are limited to the value of that part of the performance affected.

Fernfabrik Matt Herriott e.K provides a guarantee of continued availability and claims for compensation within reason.

Furthermore, liability is excluded when service delays and/ or power outages happen due to natural occurances and/ or unforeseen, temporary and not predctable happenings. The adverse effects of in particular administrative orders, strikes, lockouts and legal corporate industrial action are to be understood. This also includes the complete or partial failure of performance required for your own communications and network structures and gateways from other vendors and operators.

8.) Exemptions

8.a) The customer agrees with Fernfabrik Matt Herriott e.K. not to become involved in with (for or against) any third-party claims based on illegal acts of the customers or substantive errors of this information made available. This particularly applies to copyright, data protection and competition law violations

9.) Instruction for Software Development, Programming

9.a) Orders, which either completely or in part are the development of Software by Fernfabrik Matt Herriott e.K. are subject to the following:

9.b) The basis of the contractual obligations of Fernfabrik Matt Herriott e.K. are the statements made by the customer regarding the desired functionality in relation to the existing hardware and software environment. Fernfabrik Matt Herriott e.K. shall not be held liable for the accuracy or completeness of this information.

9.c) For contracts for software development developed by Fernfabrik Matt Herriott e.K. according to the specifications of the customer (clause 9b) a solution is based on the principles of good professional practice and the state of science and technology which transforms it into a functional computer program.

9.d) Fernfabrik Matt Herriott e.K. is liable for the functionality of the software developed. Fernfabrik Matt Herriott e.K. is not liable for whether or not the use of the software brings specific benefits or results to the customer, this is particularly so in the case of the software being used in a business environment.

9.e) It a contract is terminated during the development phase, for whatever reason by the customer, it will be deemed that this eliminates any claim to any payments made in advance, discounts or partial payments.

10.) Data Protection


10.a) The customer agrees that personal data (inventory data) and other information concerning use of it (call data) (eg date, number and duration of calls, access passwords, Up - and downloads), throughout the duration of the contract will be stored to the extent necessary to fulfill the purpose of the contract, especially for accounting purposes, as required by Fernfabrik Matt Herriott e.K. The saving of data is regarded as consenting to this. The inventory data collected and processed by Fernfabrik Matt Herriott e.K.  is also used to give advice to customers, for advertising and market research for its own purposes and for the appropriate configuration of telecommunications services. The customer may object to such use of their data.

10.b) Fernfabrik Matt Herriott e.K. agrees to provide the customer upon request at any time information about the stored data. Fernfabrik Matt Herriott e.K. will not forward either data or the content of private messages to third parties without the express consent and permission from the customer/ client. This does not apply to the extent that Fernfabrik Matt Herriott e.K. is required by law to disclose such data or as in internationally accepted standards to third parties, particularly government agencies.

10.c) The customer must be aware that the data security in open networks like the Internet under their current technical state cannot be guaranteed. The customer accepts that data stored on the Webserver and possibly other data saved by the customer with Fernfabrik Matt Herriott e.K. can potentially be view at any time. Other users of the Internet are under certain circumstances in a position within to control network security and message traffic without authorisation. The customer accepts responsibility for the security of the data transmitted to the Internet. 

10.d) Data regarding a domain task, as is necessary, may need to be used for registration of the domain. This includes the publication of the domain registration technically and legally necessary data for the public register of the Registrar. The data will be published there as part of a query service. Data will also be provided, where necessary, also specify the data requirements for the Whois database accessible to everyone at the RIPE NCC in Amsterdam. This concerns the following data: name, address, e-mail address and telephone number of domain owner, who is also registered as a so-called AdminC. Fernfabrik Matt Herriott e.K. assures, furthermore, that the requirements of the Teleservices Data Protection Act (TDDSG), the Federal Data Protection Act (BDSG), the Telecommunications Act (TKG) and the telecommunications services company Data Protection Ordinance (TDSV) in the storage and use of the data are observed. Customer data will be deleted immediately after the termination, or no later than the end of each calendar year in which notice was given.

11.) Webhosting (Webspace) and Domain Service With Regard to Fernfabrik Matt Herriott e.K.

11.a) Domain Registration: Through this registration Fernfabrik Matt Herriott e.K. acts only as an intermediary between the Registrar and the customer. Since Fernfabrik Matt Herriott e.K. has no direct or indirect influence on the allocation and/ or availability of the domain no responsibility for the allocation/ availability will be taken. This applies for the lifetime of the domain. In particular, it is pointed out that this can be applied to the customer's requested domain and does not guarantee that this is free from copyright. This also applies to any sub-domains assigned. The customer explicitly declares through the assignment of domain registration via Fernfabrik Matt Herriott e.K. that the desired domain does not violate the (protective) rights of any third party.

11.b) Legal disputes over domains/ domain names and exemption from possible third case claims, especially claims for damages against Fernfabrik Matt Herriott e.K. can only be made when their origin lies in the fact that the domain requested by the customer, which was delegated and registered through Fernfabrik Matt Herriott e.K.,affects the rights of third parties. In this instance the customer agrees expressly to keep Fernfabrik Matt Herriott e.K. and the Registrar free from such claims.

The customer agrees to inform Fernfabrik Matt Herriott e.K. immediately of (pending) litigation with regard to registered and delegated domain(s), especially when Fernfabrik Matt Herriott e.K. is accused of the violation of these Terms and the rights of third parties.

Fernfabrik Matt Herriott e.K. can before the beginning of a contract to negotiate, on behalf of the customer to give up the disputed domain name.

11.c) Fernfabrik Matt Herriott e.K. can treat the domain during/ after the end of a contract once the contract has expired in any way seen fit. The domain can be returned or used for other purposes. Costs will not be incurred by the customer in any instance. Up to the end of the contract, the customer can submit a KK-request for acquisition of the domain by another provider. Fernfabrik Matt Herriott e.K. will approve the transfer, provided that all claims under the contract have been settled.

12.) Conclusion of Contract

The Contract between Fernfabrik Matt Herriott e.K. and the customer first comes into place through the Acceptance of the customer order by Fernfabrik Matt Herriott e.K. Fernfabrik Matt Herriott e.K. has the right to decline the customer order without giving reason. Fernfabrik Matt Herriott e.K. has the right to terminate the contract with the customer to if the customer fails to comply with and/ or is guilty of violating the terms and conditions of trade outlined here. The contract period for hosting packages is at least one (1) year and is automatically renewed for a further year, if the customer does not cancel in writing at least four weeks before the end of the contract.

13.) Customer Obligations With Regard to Webhosting Agreements (Webspace)

13.a) Labeling requirement. The customer agrees that all content published on its web pages (HTML documents), is its own. As  a precautionary measure Fernfabrik Matt Herriott e.K. indicates that there is a legally standardised requirement for the customer in regard to labeling. This requirement must be met as soon as and as long as the content of the sites under the responsibility of the customer within the meaning of the Teleservices Act (TDG) or the Media Services State Treaty (MDStV) falls. Fernfabrik Matt Herriott e.K. is exempted by the customers from all claims arising from a breach of these statutory requirements.

13.b) Receipt of a Web hosting package from a customer constitutes compliance with the statutory requirements for Fernfabrik Matt Herriott e.K. Homepages should not contain information about or reference to/ or illegal content. This includes in particular information and representations which - incite racial hatred or depict cruel or otherwise inhuman acts of violence against people in a manner which expresses a glorification or trivialize such acts of violence or depicting the cruelty and inhumanity of the process in a human dignity hurtful way (§ 131 StGB), - glorify war, - violence that includes the sexual abuse of children or sexual acts of humans with animals (§ 184 Abs 3 StGB). Content which falls under the law to protect teenagers from corrupt publications, or suitable obviously, are children or young people morally to endanger or impair their well-being is through technical means or in any other suitable way to take care that the transfer to or knowledge acquisition by adult users is not excluded. National and international copyright laws are to be observed. Content which results in the provision of goods or services require under general law a special business license is required. Such content is permitted when the user is in possession of an appropriate and valid permit. For violations of the obligations listed in the foregoing points, and in the case there are justified doubts about the legality of significant content posted, Fernfabrik Matt Herriott e.K. is entitled to terminate the site immediately to the exclusion of any claims for damages by the user. Each user is responsible for the content that is published under thier domain. The user is directly liable for injuries to third parties.

13.c) Accuracy of the data specified by the customer, The customer assures Fernfabrik Matt Herriott e.K. that all specified data is both correct and complete. In the case thatchanges occur, the customer is obliged to promptly send the corrected new data to Fernfabrik Matt Herriott e.K.

13.d) The customer is obliged to treat web hosting agreements with confidentiality. This applies up to the fulfillment of the contract and includes the use of passwords. In the case a password is used by a third partiy, the customer agrees to bear any resulting costs and to provide any required compensation. The customer expressly releases Fernfabrik Matt Herriott e.K. from all liability in relation to any claims which are made by a third party as a direct result of a breach of this obligation.

13.e) The customer explicitly agrees with Fernfabrik Matt Herriott e.K. not to send any e-mails to third parties who do not want this. This especially concerns the sending of e-mails with a high number of addressees, the so-called "spamming" (or "spam mail" or "junk mail"). This also applies to the sending of such mass e-mails in chat rooms and / or discussion forums.

13.f) The Customer undertakes upon themselves not to affect adversely the performance of the server through unusually high loads or otherwise. Offering downloads of video files, and software is only permitted with the written consent of the provider. For offerings with a certain pre-defined and within reason data transfer amount (eg 50 GB traffic included) downloads are permitted without prior approval.

14) Control Rights of Fernfabrik Matt Herriott e.K. in Webhosting Contracts (Webspace)

Fernfabrik Matt Herriott e.K. has the right to randomly visit a customers’ Website and should there be reasonable suspision regarding a possible breach of agreement by the customer can Fernfabrik Matt Herriott e.K. immediately act in response to this violation. Should the customer fail to comply with the request to remove immediately or explain the legality/ not able to prove legality regarding the breach, Fernfabrik Matt Herriott e.K. reserves the right to terminate the contract without notice. Until and pending a final resolution in this case, the customers domain registered through Fernfabrik Matt Herriott e.K. will remain blocked.

15.) Breach of Contract

15.a) In the case one or more of these Terms and Conditions is violated by a customer Fernfabrik Matt Herriott e.K. is entitled to immediately terminate any agreement in place.

16.) Applicable Law, Place of Performance, Place of Jurisdiction

16.a) All contracts and transactions between Fernfabrik Matt Herriott e.K. and their customers are subject to German law, with the exception of the provisions of German law, which refer to another law.

16.b) The place of performance of Fernfabrik Matt Herriott e.K. is currently Erfurt, Thueringia, Germany.

16.c) The exclusive jurisdiction for any claim arising out of the above Contracts and transactions, including check and change action between the parties, (Fernfabrik Matt Herriott e.K. and general merchants, including legal persons under public law) disputes arising over the formation, the settlement or termination of business relationship, is Erfurt / Jena, Fernfabrik Matt Herriott e.K. can also make claims against the private residence or business of the customer.

17.) Final Provisions

17.a) Should any of the foregoing provisions of this agreement be or become invalid, this shall not affect the validity of the remaining provisions. This point applies also to the substitution of the invalid provision with a provision that results in, as closely as possible to the original agreement, the parties achieving the same economic result, had they had known the ineffectiveness of the regulation(s) in question.

17. b) Should there be any confusion regarding these English Terms and Conditions it should be noted that the German form and interpretation takes precedence. Fernfabrik Matt Herriott e.K. is based, registered and operates out of Germany therefore German law and legal interpretation with regard to these Terms and Conditions is the point of first reference.

 

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