Terms of Service.

Part I — General conditions

1. Scope

1.1. servinga GmbH, Rüsselsheimer Str. 22, 60326 Frankfurt am Main, Germany (hereinafter referred to as the “provider”) shall perform its services for the brand “VPS2day” exclusively on the basis of these General Terms and Conditions (GTC).

1.2. The terms and conditions of our customers or third parties shall not apply, and shall not be considered part of the agreement, even if their validity is not expressly rejected in a specific case.

1.3. If special conditions under part 2 of these General Terms and Conditions (GTC) apply to services, then they shall take precedence over the conditions in part 1.

2. Obligations of the customer

2.1. Customer data
The customer is obligated to provide complete and truthful information when creating (registering) a new customer account and when completing the customer profile following initial registration. The customer is furthermore obligated to keep their data up to date and inform the provider promptly of any changes. 

If the provider becomes aware that a customer has intentionally provided false information, they reserve the right to block the customer account and services for the customer until the provider has checked the customer’s identity based on valid ID documents. If the ID document contains non-Latin characters, a certified translation of the document must be submitted. If the ID document does not contain any information on the customer’s residence, then suitable verification must be provided of the residential address (such as a utility bill). The provider shall update the customer’s data in their account after reviewing it, and reverse the block placed on the customer account and associated services.

If the provider suspects that the provided data is not correct, the provider can request that the customer verify their data using a valid ID document (see above). If the customer does not meet this request within 48 hours (2 days), the provider is entitled to temporarily block the customer account and all associated services. The block will be reversed immediately once the customer meets the request. If the customer does not meet the request even after 7 days, the provider reserves the right to permanently terminate the customer relationship. 

2.2. Account security
The customer is obligated to keep access details for the customer portal and provided services confidential, to not share such details with third parties and to change them if necessary. The customer shall promptly inform the provider if they become aware that third parties have obtained their access details.

3. Obligations of the provider

3.1. The provider is only obligated to provide technical support to the customer within the contractually agreed upon scope. No further free support shall be granted. The provider does not offer direct support for the customer’s customers, unless otherwise agreed in writing.

3.2. If the provider grants additional services without an added fee, the customer shall not be entitled to have such services performed. The provider has the right to cease, change, or only offer such previously free services for a charge, with reasonable notice. In such cases, the provider will inform the customer of this promptly.

4. Payment and invoices

4.1. The customer can only book services if their customer account has sufficient credit to do so. Credit can be loaded to the account using different available payment methods. The customer will receive an invoice for each amount paid in. These can be downloaded in the customer portal.

4.2. Usage-dependent fees are due and payable in advance for the selected contractual term, unless a different billing period has been agreed with the customer. Usage-dependent fees are due at the end of each billing period and must be paid at this time.

4.3. Temporary blockages of service will not influence the customer’s payment obligation, if the customer was responsible for the blockage.

4.4. The provider reserves the right to change the available payment methods at any time without prior notification. The provider can request prior identity verification from the customer for individual payment methods, in order to prevent fraud.

5. Contractual term and termination

5.1. The contractual terms for individual services are based on the term selected by the customer in the order. For the purpose of precise billing, the length of one month is 30 calendar days.

5.2. The contract shall end automatically without requiring specific termination at the end of the contractual term selected by the customer.

5.3. The rights of both parties to termination for good cause shall remain unaffected. Good cause exists, in particular, if the customer does not meet their payment obligations or violates other significant duties.

5.4. Following an express request by the customer, and if there is sufficient credit in the customer’s account, the contract can be automatically extended by the respective selected term (“automatic extension”). The customer must explicitly activate the automatic extension of their services. If the customer does not have sufficient credit in their account at the time of the extension, the contract will end according to 5.2.

6. Liability and release

6.1. The provider shall be liable for its own actions or those of its agents only in cases of intent or gross negligence. This shall not apply to damages resulting from breaches of duty that make proper implementation of the agreement possible, which the customer should regularly be able to trust will be fulfilled (cardinal obligations). We will be liable in the case of culpable breaches not caused by intentional action or gross negligence for foreseeable damages typical for the contract, and at most 100 % of the customer’s monthly product rent.

6.2. The customer shall be liable for all direct and indirect damages, including pecuniary losses and costs of legal defense (such as court and attorney fees) incurred by the provider following a breach of their contractual obligations.

6.3. The customer shall release the provider from any third-party claims in the internal relationship resulting from illegal or infringing actions by the customer or incorrect content or information provided by the customer. This includes, in particular, violations of copyright, trademark, data protection and competition law, and cases where the customer uses one of the provider’s services with software requiring a license, and the customer manages, distributes or sets up the license for this purpose themselves.

7. Data protection

7.1. For information on data processing, please see the provider’s Data Privacy Declaration.

7.2. The provider hereby notes that the provider in general has no way to know whether the customer is processing personal data. Therefore, the customer is obligated to provide the provider with the necessary information, in particular whether the personal data of third parties is processed, the purpose for which this data is processed, and the categories of personal data and data subjects.

If the provider has not received a contract processing agreement from the customer with the required information, the provider will assume that the customer does not process the personal data of third parties using the provider’s services. Because of this, the provider will take no measures related to data protection law.

8. Cancellation policy

You have the right to revoke this agreement without providing grounds within fourteen days. The cancellation period is fourteen days from the date the contract is concluded. To exercise your right of revocation, you must contact us (servinga GmbH, Rüsselsheimer Str. 22, 60326 Frankfurt, phone number: 069 348 75 11 50, fax number: 069 348 75 11 99, email address: [email protected]) with a clear declaration (such as a letter sent by mail, fax or e-mail) stating your decision to revoke this agreement. To meet the cancellation period, it is sufficient if you send the notification that you are exercising your right of revocation before the end of the cancellation period.

Consequences of revocation:
If you revoke this agreement, we will promptly repay all payments we received from you, including delivery costs (with the exception of additional costs resulting if you select another type of delivery besides our least expensive standard delivery option) at the latest within fourteen days from the date we received the notification that you were revoking this agreement. We will use the same payment method you used during the original transaction for this repayment, unless we have otherwise expressly agreed with you. You will never be charged any fees for this repayment.

End of the cancellation policy

The above cancellation policy shall not apply to merchants in the sense of Sec. 14 BGB.

9. Dispute resolution process

The EU Commission provides a platform for extra-judicial dispute resolution (ODR platform), which is available at https://ec.europa.eu/consumers/odr. We are neither prepared nor obligated to take part in dispute resolution proceedings before a consumer board of arbitration.

10. Final provisions

10.1. Only the law of the Federal Republic of Germany applies to the contractual relationship between the provider and customer, excluding the UN CISG and international private law.

10.2. The headquarters of the provider in Frankfurt am Main (Germany) shall be agreed as the exclusive place of jurisdiction for all disputes arising from this agreement for merchants in the sense of Sec. 1 HGB (German Commercial Code). Regardless of clause 1, the provider can also file suit against the customer at its headquarters.

10.3. If a provision of this agreement is or becomes invalid, unenforceable or null and void in whole or in part, this shall not affect the validity or enforcement of all other provisions of this agreement. The null and void, invalid or unenforceable regulation shall be replaced by an appropriate regulation conforming to the meaning and purpose of the invalid or unenforceable provision as far as legally possible, or conforming to the apparent wishes of the parties, had they been aware of the issue.

Part II — Special conditions

11. Special conditions for virtual servers (VPS)

11.1. Scope
The special conditions listed under this point are considered part of the contract if a virtual server (“VPS”) is included in services booked by the customer. This is a server managed independently by the customer, for which the provider only supplies the operating infrastructure. The customer is independently responsible for the operating system and applications that run on it.

11.2. Special obligations of the customer

• The customer hereby undertakes to observe applicable statutory regulations when using and operating its virtual server. A violation of this obligation may result in a (temporary) lock of the virtual server and/or customer account. The following, in particular, are not permitted:
• Providing content or services that violate valid law in Germany or the European Union.
• Providing content or services that can be used for phishing or social engineering attacks.
• Downloading or distributing copyright protected materials without the approval of the holder of said rights.
• Engaging in (initial) hacking activities (such as port scans, network scans, brute force attacks, directory enumerations, SQL injection probing, query probing, targeted search for weak points, etc.).
• Operating command and control servers (C&C) for malicious software (such as malware or ransomware).
• Using the provided resources to create or mine crypto currencies of any kind (such as Bitcoin mining or Chia mining).
• Operating open services that can be used by third parties to violate these terms of use, for (D)DoS attacks or to distribute spam (such as open email relays, open DNS resolvers, open NTP servers, etc.).
• Endangering the network and/or resource stability of other customer servers (such as via incoming or outgoing (D)DoS attacks.
• Operating TOR relays and/or TOR exit nodes.
• Sending spam or unrequested (marketing) emails without the express approval of the recipient (a double opt-in process must be used, even if this process is not required in laws applicable to the customer).
• Using another IP address besides the one explicitly assigned to the virtual server by the provider.

11.3. Geolocalization of the IP address
The customer is not entitled for the IP address(es) of its servers to be connected by third parties to a specific country. The provider hereby undertakes to properly enter geolocalization data for each IP address with the responsible registration authority (ARIN, RIPE, etc.). How this data is interpreted by third parties (such as IP geolocalization services, search engine optimizers, etc.) is outside of the provider’s control.

The provider is not obligated to make any effort to correct incorrect geolocalization data provided by third parties (such as IP geolocalization services or general service providers), nor to replace the IP address in question or the associated server.

11.4. Changing the IP address
The customer is not entitled to have the IP address(es) of their server changed. This applies in particular in cases where the availability of the IP address(es) is restricted by network filters or blocks that are outside of the provider’s control or in case of incorrect geolocalization by third parties, reaching IP-related limits (rate limiting), or similar situations. 

It may be necessary for the provider to change the IP address(es) of the customer’s virtual server, in particular if this is necessary for technical or legal reasons. The provider will announce any change to an affected IP address at least 7 days in advance. The customer is not entitled to use or assignment of a specific IP address.

11.5. Reverse DNS (rDNS/PTR) records
The provider can grant the customer the option of requesting a reverse DNS record (rDNS/PTR) but is not obligated to do so. There is no general entitlement to be granted such a DNS entry. If the provider does grant the option to request such a record, they will review the domain associated with the reverse DNS record at their own discretion and assign it if the results are positive. The provider, however, reserves the right to reject reverse DNS records if they suspect that the DNS entry is needed only to send (unrequested) mass e-mails or spam messages. The provider can request that their customers make a proper legal notice and Data Privacy Declaration available on the domain requested to be a reverse DNS record before accepting the DNS entry. Reverse DNS entries are explicitly not included in the contractual scope for a rented virtual server (VPS). This is a voluntary service from the provider which can be halted at any time according to point 3.2 of these GTC (including partially).

11.6. Licensing agreements
Only the customer is responsible for correct licensing, if they manage, set up or distribute licenses on the servers. The current licensing conditions of the respective software provider also apply for open-source programs. If the software provider’s conditions contradict the conditions here, then the conditions of the software provider shall take precedence.

If the customer has decided to install a Microsoft software product (Windows server) on their virtual server, then they are obligated to comply with the applicable licensing conditions for “Volume Licensing for Microsoft Products and Online Services” (PUR, OLSUR, OST, PLS, SPUR, SLA, DTN, ISV EULAs) or other relevant provisions. The provider will only provide an evaluation version of a software product, not a license or licensing key.

Therefore, the customer accepts the requirement of complying with corresponding provisions, and bears responsibility for ensuring they are applied correctly. It is possible that licenses the customer has acquired elsewhere for Microsoft products cannot be used, or can be used only with restrictions on the virtual server, in accordance with these conditions.

These provisions can be viewed at the following address at any time: https://www.microsoft.com/licensing/docs/view/Licensing-Use-Rights

11.7. Backup
The customer is responsible for regularly backing up data stored on their virtual server outside of the provider’s infrastructure (external backup). The customer is obligated to conduct a full external data backup before any change initiated internally or commissioned externally. If data is lost in spite of this, then the customer is obligated to transmit the affected data to us once again free of charge or to restore the data.

11.8. Network and bandwidth
The provider shall restrict network exports from the virtual server to the maximum speed agreed to in the performance specification. The provider shall not guarantee any specific upload or download speed, since such speeds are always dependent on the other party’s connection and the transmission route, over which the provider has no influence. The customer shares the physical Hypervisor network connection with the virtual servers of other customers. The handover point for services involved with the network connection in each case is the outgoing port of the router. Beyond there, the provider’s ability to influence the transportation route for network packages ends.

The traffic used by a virtual server is calculated based on the total incoming and outgoing data quantities processed via the network interface of the virtual server. If a virtual server exceeds the traffic included in the agreed performance specification, the provider reserves the right to reduce the bandwidth of the network interface of the virtual server to 25 MBit/s.

11.9. Measures to counteract spam
The provider reserves the right to restrict the ports necessary to send emails and to release them only with additional verification of the customer’s identity (such as using a valid ID document). If the customer violates their obligations, in particular by sending spam emails, the provider reserves the right to restrict the ports necessary to send email on all of the customer’s booked virtual servers in order to avoid further negative impacts on the provider’s network and network reputation.

12. Special conditions for S3 compatible object storage

12.1. Scope
The special conditions listed under this point are considered part of the contract if S3 compatible storage (“object storage”) is included in services booked by the customer. This is storage space linked to the internet that can be utilized with software supporting the S3 protocol.

12.2. Obligations of the customer
The customer hereby undertakes to only provide necessary storage space in the framework of applicable laws and regulations. In particular, the customer is not entitled to use the object storage to:

• Save, distribute or share content that violates applicable German and European law
• Store, provide or distribute copyright protected content without obtaining express approval from the holder of the rights
• Store, provide or distribute malicious software (viruses, Trojan horses, malware, ransomware, etc.

The customer shall retain full control over the access control mechanisms used for object storage. Only the customer is obligated to configure the object storage such that their desired groups of individuals can access the stored content.

12.3. Compatibility with the S3 protocol
The provider shall do everything economically reasonable to ensure the best possible compatibility with the S3 reference protocol. Despite these efforts, it is possible that in particular new features of the S3 protocol may not be (fully) compatible with the object storage offered. However, compatibility among all significant core operations (storing, accessing and deleting data) must still be ensured without restrictions.