Terms and conditions

This English translation is provided for information only. Only the German version is legally binding.

General Terms and Conditions for web hosting, email mailboxes, domains, web design and related services of Hostgarten – Webhosting & Webdesign, Proprietor: Georgios Tassoúlas, Heilbronner Strasse 1, 10779 Berlin (hereinafter “Hostgarten” or “we”).

Contents: § 1 Scope · § 2 Conclusion of contract · § 3 Customer account · § 4 Services · § 5 Prices and payment · § 6 Late payment · § 7 Changes to prices and services · § 8 Term and termination · § 9 End of contract · § 10 Web hosting · § 11 Email · § 12 Domains · § 13 Web design · § 14 Support and maintenance · § 15 Customer obligations · § 16 Blocking · § 17 Right of withdrawal · § 18 Defects · § 19 Liability · § 20 Force majeure · § 21 Data protection · § 22 Confidentiality · § 23 Changes to the GTC · § 24 Final provisions

§ 1 Scope

(1) These General Terms and Conditions (GTC) apply, in the version valid at the time the contract is concluded, to all contracts between Hostgarten and its customers concerning web hosting, email mailboxes, domains, web design, maintenance and related services.

(2) Customers may be consumers or businesses. A consumer is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or self-employed profession (§ 13 BGB). A business (Unternehmer) is a natural or legal person or a partnership with legal capacity that, when entering into a legal transaction, acts in the exercise of its trade, business or self-employed profession (§ 14 BGB). Provisions that apply only to consumers or only to businesses are expressly identified as such.

(3) Deviating, conflicting or supplementary terms and conditions of the customer only become part of the contract if we expressly agree to their validity in text form. Individual agreements, in particular in a quotation, take precedence over these GTC.

(4) Our services are aimed exclusively at customers whose residence or registered office is in Germany. The language of the contract is German. Translations of these GTC into other languages are provided for information only; the German version alone is authoritative.

§ 2 Conclusion of contract

(1) The presentation of our plans and services on the website does not constitute a legally binding offer, but an invitation to place an order.

(2) Online order: The customer selects the desired plan, enters the desired domain if applicable and chooses the billing method. The customer then enters their customer and billing details or logs in with their customer account. Before submitting the order, the customer receives an overview of all details including prices and can identify and correct input errors using the buttons for making changes or the usual browser functions. By clicking the “order with obligation to pay” button (“zahlungspflichtig bestellen”), the customer submits a binding offer to conclude the contract. We confirm receipt of the order by email without delay; this acknowledgement of receipt does not yet constitute acceptance.

(3) The contract is concluded when we expressly accept the order by email or begin performance, in particular by activating the hosting package or applying for the domain, but at the latest when the access data is sent.

(4) We prepare individual quotations (in particular for web design) in text form. Unless stated otherwise, they are valid for 30 days. The contract is concluded when the customer accepts the quotation in text form (e.g. by email or by confirmation in the customer area).

(5) We may reject orders without giving reasons, in particular if the information provided is incomplete or obviously incorrect or if there are indications of misuse.

(6) We store the text of the contract. We send the order data and these GTC to the customer in text form with the order confirmation. The customer can also access their contracts and invoices in the customer area at any time; the current GTC are available on our website.

(7) If the customer orders as a business, they warrant that they are obtaining the services for their trade, business or self-employed profession. We may request appropriate evidence of this.

§ 3 Customer account and access data

(1) The customer receives a free customer account for managing their contracts. The customer is obliged to provide truthful, complete and up-to-date information when registering and thereafter, and to update any changes (in particular to the address and email address) in the customer area or notify us of them without delay.

(2) The customer keeps their access data (passwords for the customer area, web space, databases and mailboxes) secret, uses secure passwords and protects them against access by third parties. We recommend activating two-factor login. If there is a suspicion that unauthorised persons have obtained knowledge of access data, the customer changes it immediately and informs us.

(3) The customer is liable for actions of third parties carried out using their access data, insofar as the customer is responsible for this.

§ 4 Services in general

(1) The nature, scope and characteristics of our services are set out in the service description of the chosen plan on our website at the time of the order or in our individual quotation.

(2) We provide our services in accordance with the current state of the art. We may use carefully selected service providers (e.g. data centre operators, domain registrars) to provide our services. Our responsibility for the performance of the services in accordance with the contract remains unaffected.

(3) We may discontinue free additional services that are not part of the service description with reasonable notice; there is no entitlement to them.

§ 5 Prices and payment

(1) The prices stated at the time of the order apply. All prices are in euros and include statutory VAT. For businesses, we show VAT separately on the invoice.

(2) Recurring fees (e.g. for hosting, mailboxes and domains) are charged in advance for the chosen billing period (monthly or annually). One-off fees (e.g. set-up, web design, migrations) are charged upon performance of the service or in accordance with the payment schedule agreed in the quotation. For web design projects, we may require a reasonable advance payment and instalment payments for partial services already performed, insofar as this has been agreed in the quotation.

(3) We provide invoices exclusively electronically as PDFs by email and in the customer area; the customer agrees to this. Invoices are due for payment without deduction within 14 days of the invoice date.

(4) The available payment methods are bank transfer and – where offered in the customer area – payment via Stripe (e.g. credit card) or PayPal. For payment via a payment service, that service’s terms also apply.

(5) If we incur costs as a result of a returned direct debit or chargeback for which the customer is responsible (e.g. bank charges, payment service fees), the customer must reimburse these. The customer is entitled to prove that no damage or a lesser amount of damage has been incurred.

(6) The customer may only set off claims that are undisputed or have been finally established by a court or that are in a reciprocal relationship with our claim. A business may only assert a right of retention on account of claims arising from the same contractual relationship.

§ 6 Late payment

(1) If the customer is in default of payment, the statutory provisions apply, in particular with regard to default interest (§ 288 BGB). In relation to businesses, we may also claim the lump-sum default charge pursuant to § 288(5) BGB.

(2) If the customer is in default with a not insignificant amount, we may temporarily block the services concerned until the arrears have been settled, after prior notice in text form giving at least 14 days. In relation to consumers, blocking is only permitted if the arrears amount to at least two monthly fees and we have pointed out the possibility of seeking legal protection. The obligation to pay the ongoing fees remains in place during a block. Once the arrears have been settled, we lift the block without delay.

(3) The right to terminate for good cause in the event of significant late payment (§ 8(5)) remains unaffected.

§ 7 Changes to prices and services

(1) Changes to the prices of ongoing contracts require the customer’s consent. We notify an intended change in text form at least six weeks before it takes effect. If the customer does not consent, the contract continues at the previous prices; we may then terminate it with ordinary notice in compliance with the periods set out in § 8.

(2) If a registry increases the fees for a domain, we may adjust the price for the next registration period to the same extent. We notify this at least six weeks before the renewal; the customer may then terminate the domain at the end of the current period or transfer it to another provider.

(3) We may further develop the technology used (e.g. server hardware, operating system, PHP and database versions) and switch off versions that are no longer supplied with security updates by the manufacturer, insofar as the agreed services are not significantly impaired as a result and the change is reasonable for the customer. If such a change requires the customer’s content to be adapted, we inform the customer at least four weeks in advance, or as early as possible in the case of urgent security reasons.

(4) Other changes to the services that disadvantage the customer more than insignificantly require the customer’s consent.

§ 8 Term and termination

(1) Monthly billing: The contract runs for an indefinite period and may be terminated by either party at any time with effect from the end of the current monthly billing period.

(2) Annual billing: The initial term is twelve months. The contract may be terminated with one month’s notice with effect from the end of the initial term.

• Consumers: If the contract is not terminated, it continues for an indefinite period after the initial term and may then be terminated at any time with one month’s notice. We refund on a pro rata basis any fees already paid for periods after the end of the contract.
• Businesses: If the contract is not terminated, it is renewed for a further twelve months in each case; the notice period is one month to the end of the respective term.

(3) Domains are registered for the registration period specified by the registry (generally one year) and are renewed unless terminated. For domains that form part of a hosting plan, the term and notice periods of the hosting contract apply. For domains ordered individually, paragraphs 1 and 2 apply accordingly.

(4) Termination is possible in text form (e.g. by email), via the customer area or via the page Cancel contracts here. We confirm receipt of the termination in text form without delay, stating the date and time.

(5) The right of both parties to terminate for good cause remains unaffected. Good cause exists for us in particular if the customer is in default with the payment of an amount equal to two monthly fees, or if the customer seriously breaches § 15 despite a warning; a warning is not required if it would be futile or immediate action is necessary (e.g. in the case of content constituting a criminal offence).

§ 9 End of contract, release of data and domain transfer

(1) Upon the end of the contract, we cease providing the services. The customer is responsible for backing up their content, databases and emails in good time before the contract ends.

(2) We permanently delete stored content, databases and emails 30 days after the end of the contract. Until then, the customer may, by arrangement, access their data or have it sent to them in a common format; for effort going beyond the provision of a download archive, we may charge reasonable remuneration.

(3) At the end of the contract, we support the transfer of domains to another provider by providing the required auth code or by consenting to the change of provider. If the customer gives no instruction by the end of the contract, we may return the domain to the registry (“.de”: into DENIC’s transit procedure) or have it deleted after prior notice in text form and the expiry of a reasonable period of at least 14 days.

§ 10 Web hosting

(1) We provide the customer with storage space, databases and other functions in accordance with the chosen plan on servers in data centres in Germany. Data traffic is included in the price within the scope of normal use of a website.

(2) The servers are available with an availability of 99 % on an annual average. This does not include announced maintenance work (§ 14(3)) or periods during which the servers cannot be reached due to circumstances beyond our control (e.g. force majeure, faults in third-party networks, attacks by third parties despite reasonable protective measures).

(3) The hosting packages are operated on servers shared by several customers. The customer uses the resources (in particular computing time, memory, processes and database connections) in such a way that the operation of other customers is not impaired. If a website significantly and permanently exceeds the load usual for the plan, we inform the customer and suggest a suitable plan; in the event of an acute threat to server operation, we may temporarily deactivate the cause (e.g. a faulty script).

(4) SSL certificates (Let’s Encrypt) for the package’s domains are included in the price and are renewed automatically as long as the domain points to our servers.

(5) We back up the data of the hosting packages daily and retain the backups for 14 days. The backups serve our operational security and the restoration of data after faults. Restoring individual data at the customer’s request is possible within the scope of the existing backups; for repeated or time-consuming restorations not attributable to our fault, we may charge reasonable remuneration.

(6) The backups do not replace the customer’s own data backup: the customer is obliged to make their own backup copies of their content, databases and emails at reasonable intervals, in particular before making their own changes, and to keep them outside our servers.

(7) The customer is responsible for software that they install themselves (e.g. WordPress, extensions, themes, shop systems), in particular for its licensing and updating, unless we have expressly undertaken its maintenance (e.g. in the case of a WordPress plan with updates).

§ 11 Email

(1) The number and size of the email mailboxes are determined by the chosen plan. If a mailbox is full, further emails may be rejected.

(2) To protect the customer and our systems, we automatically check incoming and outgoing emails for spam and malware. Emails identified as dangerous may be rejected; emails identified as spam may be flagged or moved to a spam folder. We cannot guarantee error-free detection.

(3) Sending bulk emails, advertising without the recipients’ consent and emails with a forged sender is prohibited. To ensure deliverability for all customers, we may set reasonable sending limits. For newsletters with a large mailing list, a specialised service must be used.

§ 12 Domains

(1) In the registration and management of domains, we act merely as an intermediary in the relationship between the customer and the respective registry (for “.de”, DENIC eG) or the registrar we have engaged. The terms and policies of the respective registry also apply; for “.de” domains, these are the DENIC Domain Terms and Conditions and DENIC Domain Guidelines, which the customer can view at denic.de.

(2) Information on the availability of a domain on our website is provided without guarantee. We cannot guarantee that a requested domain will be allocated. A domain is only deemed registered once it has been entered by the registry. If a domain is not allocated, we refund the fee already paid for it.

(3) The customer is the domain holder. The customer’s details must be correct and complete; the customer notifies us of any changes without delay. Incorrect details may lead to the deletion of the domain under the rules of the registries.

(4) The customer ensures that the desired domain and the content offered under it do not infringe any third-party rights (e.g. trade mark, name or company name rights) and do not violate any statutory provisions. If a dispute entry or comparable procedure is initiated against the domain, we inform the customer without delay.

(5) To transfer a domain to us, the customer requires the consent or the auth code of their previous provider. The previous contract remains in place until the transfer has been completed; the customer is responsible for terminating it.

(6) § 8(3) and § 9(3) apply to termination and the end of the contract.

§ 13 Web design

(1) The content, scope, deadlines and remuneration of web design services are set out in our individual quotation. Unless otherwise agreed therein, the contract is a contract for work (Werkvertrag).

(2) Cooperation: The customer provides the content required for implementation (in particular texts, images, logos, product data and access data) in good time, in full and in a common digital format, names a contact person and promptly approves drafts and interim versions. Delays resulting from missing or late cooperation extend agreed deadlines accordingly. If cooperation is not forthcoming for more than three months despite a request, we may invoice the services performed up to that point.

(3) Corrections and changes: The agreed price includes the rounds of corrections specified in the quotation or, if not specified, two rounds of corrections per draft. Requests for changes that go beyond the agreed scope of services or concern parts that have already been approved are carried out, after prior agreement, for separate remuneration based on time and effort at our hourly rate applicable at the time.

(4) Acceptance: Upon completion, we make the website available for acceptance. The customer checks it within 14 days and declares acceptance or notifies us of material defects. Immaterial defects do not entitle the customer to refuse acceptance. Acceptance is deemed to have taken place if the customer does not reject the website within this period stating at least one defect, or if the customer uses it productively (publication); we point out these consequences separately when making the website available. In relation to consumers, deemed acceptance only applies if we have pointed out these consequences in text form together with the request for acceptance.

(5) Content and rights: The customer warrants that they hold the necessary rights to the content supplied by them and that this content does not infringe any third-party rights. The customer indemnifies us against third-party claims based on this content, insofar as the customer is responsible for the infringement, including the reasonable costs of legal defence.

(6) Rights of use: Upon payment in full, the customer receives a non-exclusive, transferable right of use, unlimited in time and territory, to the work results created for them (design, programming) for the agreed purpose, including the right to edit them. Until payment in full, the work results may only be used for review purposes. Rights to third-party components used (e.g. open source software, content management systems, licensed fonts, images or extensions) are governed by their licence terms; paid licences are only included if this has been agreed.

(7) Legal requirements for the website: The customer is responsible for the legal admissibility of the content and offers on their website (e.g. legal notice, privacy policy, cookie consent, withdrawal policy, price information, accessibility requirements). On request, we implement the technical functions for this, but we do not provide legal advice. We recommend having the texts drafted or reviewed by a qualified body.

(8) Reference: With the customer’s consent, we may show the website created, naming the customer or the customer’s company, as a reference on our website and in our materials. Consent may be withdrawn at any time with effect for the future.

(9) Ongoing maintenance of the website (e.g. content updates, software updates, monitoring) is only owed if it has been agreed separately. For website care with a monthly time allowance, unused time expires at the end of the month; additional work is carried out after prior agreement at the hourly rate stated for the care plan.

§ 14 Support and maintenance work

(1) Customers receive support via support tickets in the customer area, by email and by telephone at the times stated on the website. We process enquiries on working days (Monday to Friday, excluding public holidays in Berlin) and generally reply within one working day. Faults affecting a large number of customers are remedied as a priority.

(2) The customer reports faults as precisely as possible (domain or service affected, time, error message) so that we can quickly narrow them down. If it turns out that a reported fault is not within our area of responsibility but is due, for example, to software installed by the customer, we may, after prior agreement, charge remuneration based on time and effort for assistance going beyond an initial analysis.

(3) We carry out necessary maintenance work at times of low usage where possible and, where possible, announce it at least three days in advance. We may install urgent security updates without prior notice.

§ 15 Customer obligations and prohibited use

(1) The customer is solely responsible for the content that they provide, store or send via our services. We are not obliged to check this content.

(2) The following in particular are prohibited:

• providing, storing or distributing content that violates statutory provisions or third-party rights, in particular copyright, trade mark, name and personality rights, data protection law, the protection of minors or criminal law (e.g. content inciting hatred, glorifying violence or depicting child sexual abuse);
• sending unsolicited advertising (spam) and promoting one’s own offers through spam sent via other providers;
• operating software or services that harm other systems or serve the purpose of spying, deception or overloading (e.g. phishing pages, malware, botnets, port scans, attacks on other systems);
• operating services that place a disproportionate load on the servers, in particular download or file-sharing services, proxy or anonymisation services, streaming or game servers and the mining of cryptocurrencies;
• using the storage space as pure data storage or backup storage unrelated to a website or a mailbox.

(3) The customer indemnifies us against third-party claims based on a breach of these obligations for which the customer is responsible, including the reasonable costs of legal defence. The customer supports us to the best of their ability in defending against such claims.

§ 16 Blocking of content

(1) If we receive a sufficiently specific notice of illegal content or of a breach of § 15, or if we detect a threat to our systems or to third parties (e.g. through malware on a hacked website or mass spam sending), we may temporarily block the content or services concerned, insofar as this is necessary to avert the threat or the infringement.

(2) We choose the mildest suitable measure in each case (e.g. blocking a single file rather than the entire package), inform the customer without delay, stating the reasons, and give the customer the opportunity to comment and to remedy the situation, unless this is exceptionally unreasonable due to the seriousness of the breach. Once the cause has been eliminated, we lift the block without delay.

(3) The obligation to pay the agreed fees remains in place during a block for which the customer is responsible.

§ 17 Right of withdrawal for consumers

(1) Consumers have a statutory right of withdrawal. Details are set out in our withdrawal policy with the model withdrawal form. Consumers can also declare their withdrawal online via the page Withdraw from contract here; we confirm receipt in text form without delay.

(2) If the consumer expressly requests that we begin performance before the withdrawal period expires (e.g. immediate activation of the hosting package or registration of the domain), the consumer must, in the event of withdrawal, pay compensation for the value of the services provided up to the withdrawal. For domains that have already been registered, this generally corresponds to the fee for the first registration period, as the registration with the registry cannot be undone.

§ 18 Defects

(1) The statutory rights in respect of defects apply. For consumers, §§ 327 et seq. BGB apply in particular to digital products and services.

(2) The customer reports defects and faults without delay and as precisely as possible via the customer area (support ticket) or by email so that we can remedy them quickly.

(3) In relation to businesses, the limitation period for claims for defects in respect of work services (in particular web design) is one year from acceptance. This does not apply to claims for damages under § 19(1), in cases of fraudulent intent or in the case of a guarantee.

§ 19 Liability

(1) We are liable without limitation in cases of intent and gross negligence, for culpable injury to life, body or health, under the German Product Liability Act (Produkthaftungsgesetz), in cases of fraudulent concealment of a defect and to the extent of any guarantee we have given.

(2) In the event of a slightly negligent breach of a material contractual obligation, our liability is limited to the damage typical for the contract and foreseeable at the time the contract was concluded. Material contractual obligations are obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the customer may regularly rely. Otherwise, liability for slight negligence is excluded.

(3) We are only liable for the loss of data to the extent that it would also have occurred if the customer had properly and regularly backed up their own data (§ 10(6)).

(4) Strict liability for defects already existing at the time the contract was concluded (§ 536a(1), first alternative, BGB) is excluded, insofar as tenancy law applies.

(5) The above limitations also apply in favour of our legal representatives, employees and vicarious agents.

§ 20 Force majeure

Events of force majeure that make performance significantly more difficult or temporarily impossible for us (e.g. natural disasters, pandemics, war, official orders, large-scale failures of the power supply or third-party networks, industrial action at third parties) entitle us to postpone performance for the duration of the impediment plus a reasonable start-up period. If the impediment lasts longer than two months, either party may terminate the contract; we refund fees paid in advance for the period thereafter.

§ 21 Data protection and data processing on behalf

(1) How we process our customers’ personal data is explained in our privacy policy.

(2) If the customer processes personal data of third parties on our servers (e.g. via contact forms or shops on their website or in email mailboxes), we act in this respect as a processor in accordance with Art. 28 GDPR. The customer can conclude the required data processing agreement online in the customer area at any time.

§ 22 Confidentiality and transfer of the contract

(1) Both parties treat as confidential any confidential information of the other party that becomes known to them in the course of the contract (in particular access data and non-public business information) and use it only for the performance of the contract. This obligation continues after the end of the contract.

(2) The customer may only transfer rights and obligations under the contract to third parties with our consent; we grant consent if there are no legitimate reasons to the contrary. The rules of the registry apply to the transfer of a domain to a new holder.

§ 23 Changes to these GTC

We notify the customer in text form of changes to these GTC for ongoing contracts at least six weeks before they take effect and provide the customer with the amended provisions in a side-by-side comparison. The changes only take effect if the customer consents to them. If the customer does not consent, the previous GTC continue to apply; we may then terminate the contract with ordinary notice in compliance with the periods set out in § 8.

§ 24 Final provisions

(1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). For consumers, this choice of law only applies insofar as it does not deprive them of the protection afforded by mandatory provisions of the law of the state in which the consumer has their habitual residence.

(2) If the customer is a merchant (Kaufmann), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with the contract is our place of business in Berlin. We are also entitled to bring an action at the customer’s general place of jurisdiction.

(3) Declarations and notifications in the context of the contract may be made in text form (in particular by email to the address stored in the customer account), unless a stricter form is prescribed by law.

(4) Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions remains unaffected. The invalid provision is replaced by the statutory provisions (§ 306(2) BGB).

(5) Information on consumer dispute resolution can be found in the legal notice.