General Terms and Conditions of The Company Internet Services.
1.1 Subject matter of the Contract is the agency activity performed by MXHoster Internet Services (hereinafter referred to as “The Company”) on behalf of the Customer, for the purpose of registration (new registration or transfer to The Company) or administration of an internet domain name (changes in the domain configuration, outgoing transfer, deletion, etc.). For domain names managed by The Company, The Company provides two domain name servers (DNS) as well as a forwarding function to existing web page or to an existing e-mailbox for the duration of the Contract. The provision of web space or electronic mailboxes is not a subject matter of the Contract, unless such service was separately ordered (see under Section 8 below).
1.2 All mutual obligations of the parties to the Contract are determined by the content of the contractual provisions supplemented by these General Terms and Conditions (GT&C). No general terms and conditions of the Customer are not part of the Contract.
1.3 The Company files, with the respective competent domain name registration organization (registry) or with a registrar accredited there, an application for the registration of the domain name with the configuration specified by the Customer on behalf of the Customer as domain owner or for its transfer from another registrar. In this transaction, The Company will act solely as the Customer’s agent. The registration or transfer as such is effected by a registry to be chosen by The Company at its discretion, i.e. either directly by the registry or through a registrar accredited there (both hereinafter also referred to as "registry"). The Company pays to these entities the fees required for executing the applications for registration, transfer, or alteration.
1.4 By ordering a domain name, the Customer agrees to enter into a registration contract with the respective competent registry pursuant to its applicable terms and conditions. Reference to the respective competent registry or registrars involved as well as their current terms and conditions of registration is made on the MXHoster website under the menu item "Registry terms". Rights and duties of the Customer under the registration contract may in part already apply before a successful registration of the domain name applied for. Under the registration contract with the respective registry, solely the Customer will be entitled and obliged in accordance with the registry’s applicable terms and conditions. The registry’s terms and conditions are not part of the Contract between the Customer and The Company.
1.5 Subject matter of the optional additional service "Transfer and Deletion Protection" is a special protection of a domain name ordered from The Company against unintentional registrar transfer and deletion. This is subject to the provisions of these GT&C relating to ordering under Section 3. The content of the additional service is determined by the specifications made upon ordering such services. The additional service includes, in particular, that the Customer’s term of payment for the charge for a renewal period is extended by a period of 50 days starting on the date of invoice in case direct debiting or credit card debiting has failed - e.g. due to a change of account, expiration of the credit card or lack of funds on the account.
2.1 Ordering requires that the Customer registers himself/herself as a user on the MXHoster website, indicating his/her data, first. Following his/her registration, a personal account is created for the Customer for ordering the registration of domain names (new registration or transfer to The Company) and effecting changes in domain configuration (password-protected customer area). The Customer receives the password required for using that account from The Company by e-mail. The Customer can change his/her password out of the password-protected area at any time. The Customer can request to have his/her account blocked for further registrations at any time. In such a case, the accounted will be immediately blocked for any further orders for registration and all data of the Customer will be deleted from the registration, unless these data are still needed for handling a current order.
2.2 After confirmation of the registration by The Company, the Customer is obliged to keep the password assigned to him/her secret from any third party. The Customer may use his/her personal account for placing orders on his/her own behalf only. The Customer is obliged to take appropriate measures against any unauthorized use of the account by third parties. The Customer is liable for the utilization of his/her account by third parties when he/she is responsible for such utilization. The Customer must in particular also pay the charges for orders placed by third parties using his/her account when the Customer is responsible for such utilization.
2.3 When using the ordering system of the MXHoster website, the Customer has to make sure that he/she does not transmit any data that may impair the proper functioning of the technical installations of The Company and of third parties. Likewise, the Customer is obliged to protect his/her own technical installations and data stocks against external data causing damage by taking appropriate security measures.
3.1 The individual technical steps required for the ordering process result from the menu navigation on the MXHoster website. In particular, the Customer must put the desired domain name into the virtual shopping cart, choose among the payment methods offered and give the required information on his/her person (name, address, invoice address, etc.) that is marked with a star in the form provided for that purpose. All entries made by the Customer regarding his/her person and the content of the order are summarized again on a separate page before completing the ordering process so that they can be read again, printed out and corrected, if necessary, before transmitting the order. Only by giving the instruction "submit order", the Customer submits a legally binding offer ("binding order"). Immediately after sending the binding order, the Customer receives an order confirmation that is sent to the e-mail address indicated in the order. Upon Customer's receipt of that order confirmation, the Contract will come about. Irrespective of the above, however, the Contract will also come about when The Company, following a binding order of the Customer, starts the performance of the order (in particular by passing the relevant data on to the respective registry). The content of the Contract concluded, including these GT&C, is stored by The Company and transmitted to the Customer together with the order confirmation in an electronic form to the e-mail address indicated in the order. Consumers have a right of withdrawal in accordance with the withdrawal instructions separately given by The Company.
3.2 The Company starts the performance of the contractual services immediately after conclusion of the Contract. The Company itself cannot guarantee the realization of the Customer's applications by the registries.
3.3 Cancellations of orders are not possible, unless the Customer effectively exercises his/her right of withdrawal.
3.4 The performance of the Contract for the registration or transfer of domain names is subject to the condition that the respective domain name is available. In case of collective orders, the impossibility to perform individual orders shall not affect the effectiveness of the individual orders that can be performed. Any information on the availability of domain names on the web pages of The Company is given without guarantee. It is in particular pointed out that such information only shows the respective data status from the databases of the respective registries, which, however, is only updated in a time-shifted manner after the legal assignment of domain names. The Company separately makes aware of the above reservations on the web pages containing the respective information.
3.5 The Company does not assume any obligation to keep the MXHoster website constantly available for orders. Moreover, The Company is not under an obligation to accept orders.
3.6 As long as the Customer does not provide contents for a domain name himself/herself, The Company shall be entitled to display own contents, such as advertising for The Company or third parties.
4.1 The Customer is obliged to pay the respective contractually agreed charge. A current version of the price list is available on the MXHoster website. For the individual Contract, however, exclusively the price set forth on the electronic order form and in the electronic order confirmation of the order.
4.2 The registration charge is to be paid for the respective administration period agreed upon when the order is placed. The initial administration period commences on the day of successful registration of the domain name (new registration of a domain name or transfer of an already registered domain name from another registrar to The Company). The Company informs the Customer by e-mail about the successful registration as well as its date. The Company points out that, in addition to the annual registration charges, there will accrue separate costs when the Customer orders a change in the domain configuration or a transfer to another provider. The prices depend on the current price list in force at the time such additional services are ordered. The ordering of additional services is subject to the provisions of these GT&C under Section 3. relating to ordering and conclusion of contract.
4.3 The registration charge for the initial administration period is due upon successful registration or transfer to The Company, unless The Company makes the performance of the Contract dependent pre-payment. Payment of the registration charge for any subsequent registration periods is due prior to the beginning of the respective new administration period. For the initial registration or transfer of a domain name as well as for any renewal of the administration period, The Company is entitled to require advance payment to the full amount of the contractual charge before performing or continuing the Contract (order on a credit basis) when
- the Customer has chosen the payment method "pre-payment" when ordering; or
- the credit card indicated to The Company for payment has expired and no valid credit card is indicated, or
- the bank account data indicated to The Company for payment has become invalid and no valid account data have been indicated.
In such a case, the advance payment for continuation of the Contract is to be paid no later than twenty (20) days before renewal of the administration period (receipt of payment by The Company). Otherwise, The Company shall be entitled, after sending a warning letter, to terminate the Contract with regard to the domain name affected without observing a notice period with effect from the end of the current administration period. Any further claims of The Company remain unaffected.
4.4. The Company invoices the contractual amounts of payment to the Customer. By default, invoicing is made electronically in the PDF format and sent to the Customer by e-mail. The Customer may separately request receipt of an invoice in a printed form sent by post against an additional charge of € 5.00 per invoice.
4.5 Payment can be effected by credit card, direct debit, wire transfer, or PayPal. Direct debiting is made upon maturity of the respective amount of payment, but not earlier than one day after sending the electronic invoice by e-mail. In case the Customer is responsible for the rejection of a debit entry, he/she shall refund lump-sum costs to an amount of € 9.00 (as stipulated damages) to The Company, unless the Customer proves that those costs were not incurred or were incurred to a substantially lower amount by The Company in the individual case.
4.6 In the event the Customer is in default in payment of due charges under the contractual relationship to a not inconsiderable amount, The Company shall be entitled to provisionally suspend its contractual services until full payment of such charges. Any further rights of The Company remain unaffected.
5.1 The Customer may have domain names registered only for himself/herself as domain owner. In this connection, the Partner is obliged to observe the current terms and conditions of registration of the respective registries. The Company provides links to the respective terms and conditions of registration on the MXHoster website under the menu item "Registry terms".
5.2 The Customer must keep the user identification and passwords assigned to him/her secret. The Customer is liable for any unauthorized and abusive utilization of the contractual user identification and passwords as far as he/she is responsible for it.
5.3 The Customer must not use the contractual services in an abusive manner. It is in particular impermissible to request, transmit, and publish content in violation of legal regulations and prohibitions by or rights of a third party. There must not be made any offers accessible to children or young persons in contradiction to legal regulations.
5.4 It is the Customer's responsibility towards The Company that the domain names registered by The Company for the Customer will not infringe on any rights of third parties or legal regulations and prohibitions and that the pages that the domain name refers to will not infringe on any such rights, regulations and prohibitions. The Customer must check the above at the beginning of the Contract and monitor it during the entire term of the Contract. The Customer shall indemnify The Company against any third parties’ claims that such third parties may be entitled to against The Company based on such violations, unless the Customer is not responsible for the violations. The Company is not obligated to check or monitor whether such violations exist. If it gets to the knowledge of The Company that a domain name of the Customer violates any rights of a third party or any legal regulations or that the domain name refers to pages the content of which violates any legal prohibitions or rights of a third party, The Company shall be entitled to block the use of the domain name servers for that domain name at any time and without observing a notice period. The Company will immediately inform the Customer about the blocking.
5.5 The Customer must, immediately and without being asked, notify every change of name or address as well as every change of his/her e-mail address, telephone number and bank account data or credit card data as far as the Customer had indicated respective contact data or bank data to The Company.
5.6 Any applications for change of the domain owner, for transfer of the domain na,e to another registrar (especially in case of a respective inquiry from another registrar) and for deletion of the domain name must be transmitted to The Company via internet out of the password-protected customer area. As far as, according to the respective registry’s or registrar’s terms and conditions, such applications can only be filed in a specific form, also the respective order given either to The Company or, if required, directly to the competent registry must be filed in such a form. The customer is made aware of these requirements in detail in his/her customer area.
5.7 When using the contractual services, the Customer has to make sure it that he/she does not transmit any programs or other data that may disturb the proper operation of the network, servers, or other technical installations of The Company or any third parties. The Customer must in particular make sure that he/she does not send any viruses or other data capable of programming server services in such a manner that they unintentionally duplicate or send data. In particular, it is also inadmissible to access or make an attempt to access third-party servers without authorization, to search the internet for open points of access, to block or make an attempt to block third-party computers, to falsify mail and news headers as well as IP addresses. In case The Company should find that an inadmissible utilization of the contractual services emanates or threatens to emanate from scripts or other program components, The Company shall be entitled to deactivate such program components or shift them on the server to such an extent as it is required for preventing the respective inadmissible effects of the program components. The Company will grant the Customer a period for correction first if and as far as that is reasonable in view of the effects of the program components that have occurred or are threatening. In any case, the Customer will be informed about the measures taken.
5.8 The Customer is obliged to protect his/her own technical installations and data stocks against any external data causing damage by applying appropriate security measures, in particular by immediately closing any known security gaps in the software. Furthermore, the Customer is obliged to make backup copies of his/her data stock at regular intervals in accordance with the degree of danger.
5.9 If any damage is caused to a third party by inadmissible utilization of the contractual services, the Customer shall indemnify The Company against any claims of a third party resulting therefrom as far as the Customer is responsible for such utilization.
6.1 The term of contract for which an ordered domain name is administered starting with its initial registration (initial administration period) depends on the specifications in the order. The contractual relationship shall expire after that initial administration period, unless the Contract is automatically renewed according to Subsection 6.2 or the Contract is renewed by a separate order placed prior to expiration of the term of the Contract according to Subsection 6.2. Furthermore, the parties can also terminate the contractual relationship during an administration period according to the provisions of Subsection 6.4.
6.2 If the Contract is not duly terminated by either party before expiration of its term, the Contract shall be automatically renewed by a further administration period of one year respectively. Notice of termination must be given two months before the end of the current term. Either party's right of termination for exceptional reasons upon existence of the conditions required by law remains unaffected. A good cause for termination by The Company exists in particular when the Customer is in default in the payment of due charges for the registration of other domain names to a not inconsiderable amount. As far as offered by The Company, the Customer can manually order a prolongation of the Contract for an administration period of two years out of his/her password-protected customer area. This is subject to the provisions of these GT&C relating to ordering under Section 3.
6.3 Reminders and notices of termination may be given by The Company by e-mail, telefax, post or in another way in a written form. Notices of termination on part of the Customer may be given either via the internet out of the password-protected customer area or by post or telefax, but not by e-mail; as far as, according to the terms and conditions of registration of the registry affected or of the competent registrar, a deletion and/or termination of the domain name can only be effected in a specific form or only directly towards the competent registry, the termination towards The Company will only become effective when such requirements are met in addition. The customer is made aware of these requirements in detail in his/her customer area. If the e-mail address indicated by the Customer is not accessible any more and the Customer has failed to immediately notify a new accessible e-mail address to The Company, messages sent to the original e-mail address of the Customer shall be regarded as received when The Company has made two unsuccessful attempts of transmission to that e-mail address.
6.4 The Contract shall terminate prematurely before expiration of the original or renewed term when the domain name is transferred to another provider or deleted at Customer's request. The Customer's right to claim damages in case of a breach of duty on part of The Company remains unaffected.
6.5 If, in the event of an effective termination of the Contract, The Company has not received a due application of the Customer for transfer of the domain name to another provider until two weeks before expiration of the contractual administration period, The Company shall be entitled to return the domain name to administration by the competent registry or cause deletion of the domain name upon expiration of the administration period. In such case, The Company may also cause deletion a short time before expiration of the administration period already as far as that is required for avoiding another renewal of the administration period at the competent registry.
7.1 The Company is only liable for damage, on whatever legal grounds, when such damage is caused by intent or gross negligence or by an intentional or negligent breach of contractual duties the fulfilment of which makes the proper performance of the Contract possible at all and the adherence to which the party to the Contract normally can rely on. In case of simple negligence, liability of The Company is limited to foreseeable damage typical of the contract.
7.2 The above limitations and exclusions of liability do not apply to damage from injury of life, body or health that The Company is responsible for as well as to liability from warranties or under the Product Liability Act.
8.1 If the subject matter of the contractual services agreed upon between the parties includes also a provision of web space (web hosting), this is in addition subject to the provisions set forth in this Section. In case of conflicts, these provisions shall take priority over the other provisions of these General Terms and Conditions.
8.2 With regard to the web hosting services, the Contract is concluded for one year and is renewed for periods of one year each, unless it is terminated by either party subject to a notice period of two months before expiration of the Contract. The web hosting services can be terminated independently from domain services ordered. Web hosting services can only be used as long as a related domain name is administered by The Company. Therefore, the contract on web hosting will end prematurely when the contractual relationship for the last related domain name ends.
8.3 The agreed annual charge for web hosting services is due for payment at the beginning of the respective year of contract.
8.4 The Customer's offer may only be used in compliance with the legal requirements on the content of tele and media services. The Customer is obliged to make backup copies of the contents stored on the servers of The Company and store such copies on own storage media suitable for this purpose at regular intervals in accordance with the degree of danger. During the existence of the contractual relationship, The Company is entitled, but not obliged to make, on a regular basis, backup copies of the contents stored on the servers of The Company and store and use such backup copies in its own interest as means of evidence or for the case of a loss of data that The Company is responsible for. As far as such backup copies are made available to the Customer at its request in other cases, a respective fee according to the price list shall be charged. The Company shall be entitled to completely delete the contents stored on the servers of The Company one week after termination of the Contract.
9.1 The General Terms and Conditions for MXHoster may be changed in accordance with Subsection 9.3 to the extent that is required for adjusting them to developments that were not foreseeable when the Contract was concluded and disregard of which would disturb the balance of the contractual relationship. Such changes must not affect any essential regulations of the contractual relationship, such as, in particular, provisions regarding type and scope of the contractual services, the term of contract as well as its termination.
9.2 The agreed prices can be increased pursuant to Subsection 9.3 as compensation for increased costs. This applies particularly when third parties who supply The Company with the delivery of services required for performing the services owed under the Contract increase their prices. A price increase requires that the individual cost elements affected as well as their weighting are disclosed in the calculation of the total price. Furthermore, prices may also be increased pursuant to Subsection 9.3 to the extent required as compensation for an increase in the applicable value-added tax (VAT) rate.
9.3 When The Company intends change the General Terms and Conditions or change prices pursuant to this Section 9, such changes shall be communicated to the Customer in writing no later than eight weeks prior to their effect. The Customer shall have a right of extraordinary termination as per the effective date of such changes, unless the change is exclusively caused by a VAT increase. Unless the Customer gives notice of termination within a period of eight weeks after receipt of the notice of change, the changes shall become part of the Contract as from their effective day. The Customer will be separately made aware of this legal consequence in the notice of change.
10.1 The Customer's rights from this Contract cannot be assigned to a third party. The Customer can set off claims for payment of The Company only against claims that are uncontested or have become res judicata. A right of retention based on claims from individual orders is only available to the Customer for claims from the same contract.
10.2 This Agreement is governed by British law, excluding UN sales law.
10.3 If any provision of this Agreement should be or become ineffective or impracticable, that shall not affect the legal validity of the remaining provisions. In place of the ineffective or impracticable provision, there shall be regarded as agreed an effective provision that comes as close as possible to what was economically intended by the parties.
11.1 The Company collects, processes, and uses personal data for the purpose of performing this Contract and all orders performed in connection with it, observing the relevant regulations under data protection law. For the performance of and accounting for the contractual services, The Company may engage the services of third parties and transmit the data required for that purpose to such third parties. The obligation to observe the legal regulations on data protection remains unaffected by the above.
11.2 In the process of the registration of domain names or of changes in the domain configuration, personal data of the Customer (first name, family name, address e-mail address as well as telephone and fax numbers, if applicable, and firm names, if applicable) may be stored in the respective registry's WHOIS databases or comparable databases in a manner open to the public. With regard to the details, reference is made to the respective registry’s or registrar’s terms and conditions.
Rev.: 3 June 2011