PART 1 GENERAL CONDITIONS
§ 1 Scope of application
(1) CONYU IT&Workspaces GmbH, Eggerstedter Weg 12, 25421 Pinneberg (hereinafter referred to as "Provider") provides its services exclusively on the basis of these General Terms and Conditions. These are also valid for future contracts between the parties in the area of hosting and domain administration, even if they are not explicitly agreed upon again.
(2) We do not recognise any deviating terms and conditions of the customer unless we have expressly agreed to them in writing. Our General Terms and Conditions of Business shall apply even if we provide our services without reservation in the knowledge of conflicting or deviating conditions of the customer.
§ 2 Performance obligations of the provider
(1) The service obligations of the Provider result from the service description of the respective product. Other promises, performance promises or subsidiary agreements are only effective if they are confirmed in writing by the Provider.
(2) The Provider is entitled to extend his services, to adapt them to technical progress and/or to make improvements. This applies in particular if the adjustment appears necessary to prevent misuse or if the Provider is obliged to adjust services due to legal regulations.
(3) If the Provider makes additional services available without additional payment, the Customer has no claim to their provision. The Provider is entitled to discontinue, change or only offer such services, which were previously provided free of charge, within a reasonable period of time against payment. In such a case, the Provider will inform the Customer in due time.
(4) The Provider is only obliged to provide technical support to the Customer within the scope of the contractually agreed upon. Beyond that, the Provider does not grant the Customer any free support services. The Provider does not provide any direct support for customers of the Customer, unless otherwise agreed in writing.
(5) Insofar as the customer is provided with fixed IP addresses, the Provider reserves the right to change the IP address(es) assigned to the customer if this should become necessary for technical or legal reasons. Unless expressly assured in writing, the customer has no claim to a specific server. The customer is aware that it may be necessary to migrate to another server without the customer's consent. The Provider will inform the Customer about changes according to this clause 5.
§ 3 Duties of the customer
(1) The customer assures that the information provided by him is correct and complete. He undertakes to inform the Provider without delay of any changes to the contact data provided as well as other data required for the execution of the contract. The customer assures that he is at least 18 years old and has full legal capacity according to the applicable laws.
(2) The customer will create daily updated backup copies of all data that he transfers to the Provider's server, or contractually instruct the Provider to do this for him. If the customer himself should remain responsible for the backup of his data, because nothing else has been agreed upon, in case of data loss, the customer must upload the respective data stocks again free of charge to the Provider's servers and restore configurations.
(3) The customer may not violate legal prohibitions, common decency and the rights of third parties (copyrights, trademark rights, name rights, data protection rights etc.) through his presence within the Provider's data processing centre and banners displayed there. The customer may not enter his Internet presence in search engines if and insofar as the customer violates legal prohibitions, public morals and the rights of third parties by using keywords and similar techniques in the entry. In the event of a violation of one of the aforementioned obligations, the Provider is entitled to discontinue its services with immediate effect or to block access to the customer's information.
(4) The customer undertakes to regularly change passwords received from the Provider for the purpose of access to his services and to keep them strictly confidential. The Customer will inform the Provider immediately as soon as he/she becomes aware that the password is known to unauthorised third parties.
(5) The customer undertakes to refrain from using techniques that cause excessive use of the provider's facilities when designing his Internet presence. The provider can exclude internet presences with these techniques from access by third parties until the customer has eliminated/deactivated the techniques. This does not apply to servers that are available to the customer for sole use (dedicated hardware).
(6) Furthermore, the customer undertakes not to use the resources made available by the Provider for actions that violate legal prohibitions, morality and the rights of third parties. This includes in particular the following actions:
(a) unauthorised intrusion into foreign computer systems (e.g. hacking);
(b) obstruction of foreign computer systems by sending/forwarding data streams and/or e-mails (e.g. DoS/DDoS attacks/spam/mail bombing);
(c) search for open access to computer systems (e.g. port scanning);
(d) sending e-mails to third parties for advertising purposes, unless the recipient has given his express consent or other permission has been granted;
(e) forging IP addresses, mail and news headers and distributing malware. If the customer violates one or more of the above obligations, the Provider is entitled to immediately discontinue all services. The Provider expressly reserves the right to claim damages.
(7) If the transmission of a certain amount of data per billing period has been agreed upon with the customer, the customer will monitor this limit. If the data transfer volume (traffic) attributable to the customer's offer exceeds the maximum amount agreed upon with the customer for the respective period, the Provider will invoice the customer for the amount attributable to the excess volume at the prices agreed upon for this.
(8) If the customer administers or sets up or distributes licenses on the servers himself, he alone is obliged to license correctly.
§ 4 Conclusion of contract, contract period, termination
(1) The contract is concluded by the acceptance of the contract offer of the customer on the part of the Provider. The acceptance is either explicitly declared or is to be seen in the beginning of the execution of the service by the Provider.
(2) Unless otherwise agreed, the minimum contract term is 12 months and the period for ordinary termination is six weeks to the end of the contract term. Unless otherwise agreed, the contract shall be extended by the respective minimum contract term in the absence of a termination. If this is longer than one year, but only by one year in each case.
(3) The right of both parties to extraordinary termination for good cause remains unaffected. An important reason for the Provider exists in particular if the Customer
(a) is in arrears with the payment of fees in the amount of two monthly basic fees;
(b) culpably violates an essential contractual obligation, and the Customer does not remedy the situation within a reasonable period of time despite a warning.
(4) Any termination must be in writing to be effective. You may also give notice of termination by e-mail if this satisfies the electronic form of § 126a BGB (German Civil Code) (so-called qualified electronic signature). If the Provider provides a corresponding termination function, the contract can also be effectively terminated within the customer information system (CIS). Consumers within the meaning of § 13 BGB can always terminate the contract in text form.
(5) The domain registration relationship shall be subject to the provisions set out in § 13 of these General Terms and Conditions, which may differ in some respects with regard to termination.
§ 5 Prices and payment
(1) User-independent fees are due and payable in advance for the respective contract period, unless a different billing period has been agreed with the customer. Usage-dependent fees are due and payable at the end of the respective billing period. All fees are based on the prices agreed with the customer for the respective period.
(2) The customer is in default even without a reminder if he does not pay within 14 days of receipt of an invoice.
(3) Unless otherwise agreed, payments by the Customer shall be made by SEPA direct debit. Unless otherwise agreed, the Customer issues the Provider with a mandate for the SEPA Direct Debit Scheme to collect all charges incurred within the scope of the contractual relationship. The mandate also applies to new bank details provided by the customer. The Provider shall notify the customer of the corresponding direct debit in good time in advance. The customer must ensure that his account has sufficient funds in the agreed debit period. The customer is obligated to compensate the Provider for any damage caused by a possible refusal to pay on the part of the account-holding institution.
(4) When paying via Paypal, the respective terms and conditions of Paypal apply in addition to the present ones. The customer authorizes the provider to collect the respective invoice amount from his Paypal account.
(5) In the case of default of payment, the Provider is entitled to demand interest of 10% per annum. In contrast, the Customer is permitted to prove that no interest loss or a significantly lower loss of interest has been incurred.
(6) The provider provides one electronic invoice each. The customer declares his agreement to this. If the customer requests that an invoice be sent by post, the Provider may charge an appropriate fee per invoice.
(7) The temporary suspension of services does not affect the customer's payment obligation.
(8) The Customer may only offset against claims of the Provider with undisputed or legally binding counterclaims. This does not apply to warranty claims of the Customer, as long as these are offset against the Provider's fee claim.
(9) Private customers will be charged the VAT rate valid for their respective EU country.
§ 6 Warranty
(1) The customer has to notify the Provider of defects immediately and to support the Provider to the best of his ability in a possible removal of defects, in particular to take all reasonable measures for data security.
(2) The Provider points out that, according to the current state of the art, it is not possible to create hardware and software in such a way that it works error-free in all application combinations or can be protected against any manipulation by third parties. The Provider does not guarantee that the hardware and software used or provided by the Provider meets the requirements of the Customer, is suitable for certain applications, and furthermore that it is crash-proof, error-free and free of malware. The Provider only warrants to the Customer that hardware and software used or provided by the Provider will function essentially in accordance with the manufacturer's performance specifications at the time of transfer, under normal operating conditions and under normal maintenance.
§7 Liability
(1) The Provider is liable, regardless of the legal grounds, only in accordance with the following regulations.
(2) The Provider is liable for intent and gross negligence according to the legal regulations.
(3) In the case of slight negligence, the Provider is only liable for the breach of an essential contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the Customer may regularly rely (cardinal obligation). In these cases, the Provider is only liable to the amount of the foreseeable damage typical for the contract.
(4) In cases of slight negligence, liability for all other damages, in particular consequential damages, indirect damages or loss of profit, is excluded.
(5) The above limitations shall not apply in the event of injury to life, body or health, or in the event of liability under the Product Liability Act.
(6) As far as the liability of the Provider is excluded or limited, this also applies to the liability of the employees, other employees, representatives and vicarious agents of the Provider.
(7) Within the scope of application of the Telecommunications Act (TKG), the liability provision of § 44a TKG shall remain unaffected in any case.
§ 8 Data protection
The provider collects, processes and uses personal data of the customer within the framework of the legal data protection regulations. Supplementary information on this can be found in the data protection declaration of Host Europe GmbH.
§ 9 Copyrights, license agreements
(1) The Provider grants the Customer a non-exclusive (simple) right of use for own and third-party software made available to the Customer, limited to the term of the contract. The transfer, except with the consent of the Provider by way of contract transfer, as well as the granting of sub-licenses to third parties is not permitted. The further use after termination of the contract is not allowed, copies of provided software will be deleted by the customer after termination of the contract.
(2) For open source programs, the respective valid license terms of the provider of the software apply additionally. The Provider shall make these available to the Customer upon request. If the terms and conditions of the Software Provider conflict with the present terms and conditions, the terms and conditions of the Software Provider shall take precedence.
(3 ) For Microsoft products: Some services offered by Provider are provided directly by Microsoft to the customer, and the Provider remains the contractual partner. The use of Microsoft Office 365 services is subject to the Microsoft End User Licence Agreement ("MS EULA") and the Microsoft Cloud Agreement, both of which are part of the contract, including the data protection and data handling regulations mentioned therein. The customer is aware and accepts that Microsoft may use, store or process his or her data (including personal data) in accordance with the Microsoft Cloud Agreement. When booking Microsoft products, the customer accepts the relevant Microsoft rules and policies.
(4) In all other respects, the license terms of the respective software manufacturers and, if relevant, the manufacturer-specific or software-specific additional terms of the Provider shall apply.
§ Article 10 Exemption
The customer undertakes to indemnify the Provider in the internal relationship from all possible claims of third parties which are based on illegal or infringing actions of the customer or errors in the content of the information provided by the customer. This applies in particular to copyright, trademark, name, data protection and competition law violations as well as violations of §3 (8) of this contract.
§ 11 Applicable law, place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the customer is a merchant, legal entity under public law or special fund under public law, Cologne shall be the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship. Furthermore, the Provider is entitled to sue the Customer at his general place of jurisdiction.
(3) The provider shall not take part in any dispute resolution proceedings before a consumer dispute resolution body.
§ Article 12 Miscellaneous
(1) All information and declarations of the Provider, with the exception of declarations of termination, can be sent to the Customer electronically, in particular via the HIS or by e-mail to the e-mail address provided by the Customer. However, the restriction of § 4 paragraph 4 applies to the Provider's notices of termination.
(2) Should a provision of the contract be or become invalid or should the contract contain a gap that needs to be filled, this shall not affect the validity of the remaining provisions. The parties undertake to replace the ineffective provision by an effective provision which most closely corresponds to the economic purpose of the ineffective provision. The same applies in the event of a contractual loophole.
PART 2 SPECIAL CONDITIONS
§ 13 Special conditions for domains
(1) If the customer registers a domain via the Provider, the contract is concluded directly between the customer and the respective registry or registrar. The Provider acts on behalf of the customer within the scope of an agency relationship. Therefore, the relevant registration conditions and guidelines of the respective registry or registrar apply.
(2) The registration of domains shall be carried out in an automated procedure. The Provider has no influence on the domain allocation. Therefore, he does not guarantee that the domains applied for for the customer can be allocated (delegated) and are free of rights of third parties.
(3) The customer is obliged to cooperate in a reasonable manner in the registration, transfer and deletion of domains as well as in changing entries in the databases of the registries.
(4) The customer guarantees that his domains and the contents retrievable under them neither violate legal regulations nor infringe the rights of third parties. Depending on the type of domain or the target of the associated contents, other national legal systems must be observed.
(5) If a third party can credibly demonstrate that domains or contents violate their rights, or if a violation of the law is deemed probable to the Provider's conviction based on objective circumstances, the Provider may temporarily block the contents and take measures to make the domain in question inaccessible.
(6) The customer shall indemnify the provider against any claims for compensation by third parties which are based on the unauthorised use of an internet domain or the associated content.
(7) If the Customer waives a domain vis-à-vis the respective registry or registrar, he shall inform the Provider immediately.
(8) The termination of the contractual relationship with the Provider shall not affect the existing registration contract for a domain between the Customer and the registry or the registrar. Nevertheless, requests for termination of the registration relationship must be addressed to the Provider, since the Provider administers the domain for the Domain Holder and communications from the Domain Holder, including notices of termination of the contract, must be sent regularly via the Provider to the respective registry or registrar.
(9) The termination of the customer concerning the contractual relationship with the Provider therefore requires for the simultaneous effective termination of the registration relationship for a domain the express written declaration of the customer that the domain is (co-)terminated and can be deleted. If the customer is not also the domain owner, the cancellation or deletion request requires the written consent of the domain owner or Admin-Cs. In both cases, "in writing" shall be deemed to be the form permitted under § 4 para. 4 sentences 1-3.
(10) The deadline for submitting domain termination requests to the Provider shall be six weeks to the end of the term of the registration relationship for all domains in connection with the Top Level Domains .de, .at, .com, .net, .org, .biz, .info, .eu, and three months for all other domains.
(11) In this respect, the Provider shall forward domain termination requests that are delayed in this respect to the registry without delay. It is clarified, however, that if a termination order regarding the domain registration contract is not submitted by the Customer in due time and the term of the domain registration is therefore extended vis-à-vis the registry or the registrar, the Customer's obligation to pay the fees for the period of the extension remains in force.
(12) If the Customer terminates the contractual relationship with the Provider, but does not make an express decision as to what is to be done with the domains registered via the Provider up to now, the obligation to pay remuneration for the domains shall also remain in force until further notice. After an unsuccessful request to the Customer, which is sent to the e-mail address provided by the Customer, to make a written statement on the domains within a reasonable period of time (within the meaning of § 4 para. 4 of these GTC), the Provider is entitled to transfer the domains to the direct administration of the respective registry or to release the domains on behalf of the Customer. The same shall apply accordingly in the event that the Provider terminates the contractual relationship with the Customer.
(13) If domains are not placed by the Customer into the administration of another Provider at the latest by the termination date of the agency agreement on the administration of the domain between the Customer and the Provider, the Provider is entitled to transfer the domains into the direct administration of the respective registry or to release the domains in the name of the Customer. This applies in particular also in the event that the Customer has issued an instruction with regard to the transfer of the domain to a new Provider, but this instruction is not implemented in time.
§ 14 Special conditions for e-mail services
(1) The customer must retrieve incoming messages in his e-mail inboxes at regular intervals. The Provider reserves the right to delete personal messages received on behalf of the Customer if they have been retrieved or forwarded by the Customer or if they have not been retrieved by the Customer within three months after receipt on the mail server. The Provider also reserves the right to return personal messages received for the customer to the sender if the capacity limits provided for in the respective tariffs are exceeded. Furthermore, the Provider is entitled to limit the size of incoming and outgoing messages appropriately.
(2) The Provider can reject e-mails addressed to his customers on the basis of objective criteria if facts justify the assumption that an e-mail contains malicious software (viruses, worms or Trojans etc.), the sender information is incorrect or disguised or it is unsolicited or disguised commercial communication.
(3) The sending of so-called spam mails is prohibited. This includes in particular the sending of illegal, unsolicited advertising to third parties. When sending e-mails, it is also prohibited to provide false sender data or to conceal the identity of the sender in any other way. The customer is obliged to make this character clear in commercial communication by designing the e-mail accordingly and to comply with the legal requirements applicable to this.
(4) If the customer sends spam mails in the sense of the preceding paragraph, the Provider can temporarily block the customer's mailboxes concerned.
§ 15 Special Conditions for Hosting Products, Dedicated and Virtual Servers
(1) The customer expressly affirms that the provision and publication of the contents of the websites or data posted by him does not violate German or any other relevant national law, in particular copyright, trademark, name, data protection and competition law. The Provider reserves the right to temporarily block contents which it considers questionable in this respect. The same applies if the Provider is requested by third parties to change or delete content on hosted websites because it allegedly infringes third-party rights.
(2) In the event that the Customer provides evidence that an infringement of the rights of third parties or any other legal violation is not to be feared, the Provider will make the affected websites available to third parties again. The Customer hereby indemnifies the Provider against claims for damages by third parties which are based on inadmissible contents of a website of the Customer.
(3) The customer is prohibited from providing the following services:
(4) If the customer alone has administrator rights, the provider cannot administer the server. The customer is therefore solely responsible for its content and the security of the server. It is his responsibility to install security software, to inform himself regularly about security gaps that become known and to close known security gaps. If the provider provides security or maintenance programs, this does not release the customer from his obligation.
(5) The customer is obliged to set up and manage his servers in such a way that security, integrity and availability of the networks, other servers, as well as software and data of third parties or of the Provider are not endangered.
(6) If a customer endangers security, integrity or availability of networks, other servers, as well as software and data of third parties or of the Provider by means of his server, or if the customer is suspected of such a thing due to objective circumstances, the Provider is entitled to temporarily block the server. This applies in particular to so-called Denial of Service attacks (DoS attacks), which the customer carries out via his server, and also in the case that the customer is not responsible for the damaging action or condition, e.g. if the customer's server is manipulated and used by third parties. An intentional act of the customer entitles the Provider to terminate the contractual relationship without notice and without prior warning.
(7) If spam mails are sent via the server (see section Special conditions for e-mail services), the provider can also temporarily block the server.
(8) Unless otherwise agreed, the Provider is not obliged to secure customer data. If the Customer commissions the Provider to back up data, the Customer must check the data backed up by the Provider for completeness and suitability for data reconstruction in a timely manner and at regular intervals. The customer must notify the Provider immediately of any irregularities.
(9) The Provider is entitled to audit or regularly check the compliance of the Customer's servers with the contractual agreements and provisions, in particular license provisions. Within this framework, the Provider is especially entitled to check whether the Customer has purchased a sufficient number of software licenses. The customer is obliged to cooperate in the audit. This includes providing the Provider with necessary information and data within a reasonable scope and time frame as well as the (permanent) installation or toleration of the installation of corresponding programs for this purpose on the Customer's servers.
11.02.2020