General Service Conditions

General service conditions at Jan 1st 2010 from TMS, hereafter called TMS

1. Scope of conditions and terms

  1. These general service conditions (GSC) apply to any contracts with the customers and users of TMS. TMS provides performance only based on these GSC. This also applies for the case the customer uses general business terms and conditions (GBTC), including conditions differing and conflicting to those mentioned in this GSC and if TMS, knowing these conditions, concludes contracts without any further reservation.
  2. The general regulations in this chapter 1 apply for any contracts. The special rules of the following chapters apply furthermore insofar as the performance described there is affected.

2. Notice of cancellation according to §§ 355, 312 d BGB

Right of revocation: You may revoke your contractual agreement within 2 weeks without giving any reason in writing (e.g. letter, fax, email). The withdrawal period starts when this information is received in writing, though not before conclusion of the contract and not prior to our performance of our duties pursuant to section 312c, chapter para 2 BGB in conjunction with para 1, 1, 2 and 4 BGB-InfoV as well as our duties in accordance to para 312e, 1 clause 1 BGB in conjunction with para 3 BGB-InfoV. To observe the time limit the prompt dispatch of the merchandise or to the return request within the set period is sufficient.

Please send the cancellation to: Tec Media Services GmbH, Konsul-Smidt-Straße 90, 28217 Bremen, Germany.

Revocation sequences: To be given change in case of an effective revocation both sides received achievements are to be refunded and returned. Any received benefits are to be returned. If you are not able to return the service received to us in whole or in part or only in deteriorated condition, you must provide us with a compensation. Duties for the compensation of payments must be fulfilled within 30 days. This time period begins for you on dispatch of your declaration of revocation, for us upon receipt of the declaration.

Special notes: your right of withdrawal of a service expires prematurely if your contract partner has started to provide the service with your expressed consent prior to the cancellation deadline or if you have caused them to do so. The above right of cancellation shall not apply when the legal transaction can be attributed to your commercial or professional work and/or if you have concluded the contract in a retail store.

3. Performance of TMS

TMS offers its customers an extensive service regarding digital archival storage via the internet. The service can be ordered by the customer separately or in different combinations. The extent of service and return service is due to user contract signed by the customer for the Tec Media Services software for archival storage, particularly number 1 of the contract (contractual object and charge), in conjunction with the current price list, valid at the time the contract is concluded plus relevant conditions.

4. Contractual, pre-contractual and extra-contractual liability

  1. In case of contributory negligence TMS is only liable in case of breach of material contractual obligations (cardinal obligation) in way that is compromising the purpose of the contract.
  2. If the client is a merchant, a legal entity under public law or a special fund under public law, any liability shall be limited on the amount of the contractual charges which the customer has paid to TMS within two years before the event giving rise to the damage occurred within the scope of the contractual relationship – except in cases of intent or gross negligence.
  3. The aforementioned limitations on liability shall also be applicable to the fault of vicarious agents of TMS, not depending on their staff membership. The above restrictions of liability shall not apply in cases of injury to life, limb or health as well as liability according to the German Product Liability Act.
  4. In area of application of the Telecommunications Act the liability rules of para 44a remain unaffected.

5. Data use and data protection

  1. TMS collects, stores and processes data within the framework of the legal data protection regulations, in their respective valid version. We refer to the privacy statement on this homepage.
  2. The customer shall specify the personal data, necessary for the contract conclusion, correctly and completely. This especially applies to data of the address, banking arrangements and email address.
  3. Personal data from customers will only be used to respond to the relevant customer to conduct a contract or for technical administration. They will only be handed or communicated to a third party when necessary for the transaction of the contract, especially within the framework of order information to suppliers.
  4. The deletion of the stored personal data and other traffic data will be effected upon desire of the customer or when the data storage is no longer in compliance with the requirements of the law. In case of termination of the contract the customer is justified to choose between the complete deletion and the complete storage of his traffic data.
  5. TMS shall exercise the greatest discretion to the confidential processes with regard to the knowledge made known to it within the scope of  preparation, realization and fulfillment of this agreement of – especially – business and trade secrets of the customer  and shall not communicate them or to use them otherwise.

6. Conditions of payment

  1. TMs is authorized by the customer to collect any fees within the framework of the contract relationship, namely once-only owed fees which are payable upon conclusion of the contract and the recurring payments in advance at the beginning of the invoicing period. This appropriation also applies for any new bank details, communicated to TMS by the customer.
  2. TMS is providing for each payment transaction an electronic invoice at the customer service area. Dispatch by email is free of charge. Should the customer wish dispatch by mail TMS can charge a fee of € 2,50 per invoice.
  3. The commercial customer is liable for delayed payment interest.
  4. Should the customer fall into arrears with the payment, TMS is entitled to levy processing fees to the amount of € 10,00 for each unauthorized return debit note. Also TMS can lock the services. Furthermore TMS is authorized to charge default interest of 8% above the respective base rate within the framework of commercial business. For non-commercial business the default interest amounts to 5 %. TMS reserves the right for evidence of higher damage. The customer is free to furnish proof of minor damage.
  5. In the event that the customer is default of the payment for two consecutive months of a considerable part of the compensation or for a longer period with an amount amounting to a monthly paid fee TMS reserves the right to cancel the contract or to refuse the service during the time of the payment default. This also applies to non-recurring payments, when the customer is default of the payment with at least 15 % of the fee payable. Furthermore all claims in commercial business will become due regardless of the agreed payment terms in these cases. This does apply in non-commercial business when the customer has not settled payment within the period of grace of two weeks with thread of total maturity.
  6. The customer is not authorized to retain or offset payment due to supposedly counterclaims including warranty claims, unless the counterclaims are undisputed or have been established in law. In non-commercial business this does not affect the right of the customer to assert the right of retention, based on the same legal relationship.

7. Communication between TMS and the customer

TMS is authorized to send information and declarations regarding the contractual relation to the email address of the customer. The customer will constantly recall the email address communicated to TMS as a contact address.

8. SCHUFA (German General Credit Protection Agency) – Clause

  1. The customer shall agree that TMS receives information from SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden, about him. The customer shall agree that TMS reports to SCHUFA regarding payment behavior non-conforming with the contract according to German Data protection Act where this is permissible after weighing up all interest concerned.
  2. SCHUFA stores and transmits the data to its contractors in the EU internal market to give them information to evaluate the creditworthiness of natural persons. The contract partners of SCHUFA are mainly commercial banks, credit card companies and leasing companies. In addition SCHUFA gives information to trading companies, telecommunication companies and others granting credits. SCHUFA only provides personal data if a justified interest in a single case has been plausibly demonstrated. When issuing information SCHUFA can also inform its contractual partners of a probability value for the assessment of the credit risk which is calculated from their data stock. (“Score procedure”). The customer has the right to obtain information about the data stored concerning him or her. You can find further information about the information and score procedure on an information sheet which is provided on request.

9. Place of obligation, court of jurisdiction and law applicable

  1. The place of performance and fulfilment for  the contract duties of TEC Media Services GmbH is Konsul-Smidt-Straße 90, 28217 Bremen, Germany. Place of fulfillment of payment duties of the customer is – in case the customer is a merchant, a legal person of public law or special fund under public law or has no general court of jurisdiction in his home country – also the address of the office in Bremen, Germany.
  2. If the customer is a merchant, a legal person of public law or special fund under public law or has no general court of jurisdiction in his home country, Bremen is agreed as court of jurisdiction. TMS also reserves the right to take legal action at the registered office or at the residence of the customer.
  3. Laws of  the Federal Republic of Germany apply to all claims regardless of what kind arising from or on the occasion of this contract  to the exclusion of the UN Sales Convention (CISG).
  4. The requirement of written form also applies to supplementary agreements, additions or amendments of this contract. This applies also to the requirement of written form clause described above.
  5. Severability clause – Should any provision of these terms be or become invalid and/or unenforceable, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law. The invalid and/or unenforceable provisions will be replaced with valid and/or enforceable provisions which most closely approximate the intent and economic effect of the invalid and/or unenforceable provisions.