Make an appointmentPART 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 also apply to future contracts between the parties in the area of hosting and domain management, even if they are not expressly agreed 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 shall also apply if we provide our services without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
§ 2 Service obligations of the provider
(1) The Provider's performance obligations result from the performance description of the respective product. Other promises, performance promises or ancillary agreements are only effective if they are confirmed in writing by the Provider.
(2) The Provider is entitled to expand its services, adapt them to technical progress and/or make improvements. This applies in particular if the adjustment appears necessary to prevent misuse or if the Provider is obliged to adjust the services due to legal regulations.
(3) If the Provider makes additional services available without additional payment, the Customer has no claim to performance of these services. The Provider is entitled to discontinue or change such services, which were previously provided free of charge, or to offer them only against payment within a reasonable period of time. In such a case, the Provider shall inform the Customer in good time.
(4) The Provider is only obliged to provide technical support to the Customer within the scope of what has been contractually agreed. Beyond that, the Provider shall not grant the Customer any support services free of charge. The Provider does not provide direct support for the Customer's customers unless otherwise agreed in writing.
(5) Insofar as fixed IP addresses are made available to the Customer, 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 him to another server without requiring his consent. The Provider shall inform the Customer of any changes in accordance with this Clause 5.
§ 3 Obligations of the customer
(1) The Customer warrants that the information provided by him is correct and complete. He undertakes to inform the Provider without delay of any changes to the contact details provided and of any other data required for the performance of the contract. The Customer warrants that he/she is at least 18 years old and has full legal capacity in accordance with the applicable laws.
(2) The customer shall make daily updated backup copies of all data that he transfers to the Provider's servers himself or contractually instruct the Provider to do this for him. If the customer remains responsible for the backup of his data himself, because nothing else has been agreed, in the event of data loss the customer must upload the relevant data files to the Provider's servers again free of charge and restore the configurations.
(3) The customer may not violate legal prohibitions, morality and the rights of third parties (copyrights, trademark rights, name rights, data protection rights, etc.) through its presence within the Provider's data centre and banners displayed there. The customer may not enter his Internet presence in search engines if and to the extent that the customer violates legal prohibitions, morality and the rights of third parties by using keywords and similar techniques in the entry. In the event of a breach of any of the aforementioned obligations, the Provider shall be 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 accessing its services and to keep them strictly secret. The Customer shall inform the Provider immediately as soon as it becomes aware that the password is known to unauthorised third parties.
(5) When designing his Internet presence, the customer undertakes to refrain from using techniques that cause excessive use of the Provider's facilities. The Provider may 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 which are available for the sole use of the customer (dedicated hardware).
(6) The customer further undertakes not to use the resources provided 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 third-party computer systems (e.g. hacking);
(b) obstruction of third-party 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) use of the Provider's resources for illegal purposes.(e.g. port scanning);
(d) sending e-mails to third parties for advertising purposes, unless the recipient has given his or her express consent or unless otherwise permitted;
(e) falsifying IP addresses, mail and news headers and distributing malware. If the customer violates one or more of the aforementioned 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 data volume per billing period has been agreed with the Customer, the Customer shall monitor this limit. If the data transfer volume (traffic) attributable to the Customer's offer exceeds the maximum volume agreed with the Customer for the respective period, the Provider shall invoice the Customer for the amount attributable to the excess volume at the prices agreed for this purpose.
(8) If the customer administers, sets up or distributes licences on the servers himself, he alone is obliged to ensure correct licensing.
§ 4 Conclusion of contract, term of contract, termination
(1) The contract is concluded by the Provider's acceptance of the Customer's contract offer. The acceptance is either expressly declared or is to be seen in the beginning of the performance of the service by the Provider.
(2) Unless otherwise agreed, the minimum contract term is 12 months and the notice 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 termination. If this is longer than one year, however, only by one year at a time.
(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 default with the payment of the fees with an amount equal to 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 can also terminate the contract by e-mail if this complies with the electronic form of § 126a BGB (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). In deviation from this, consumers within the meaning of Section 13 of the German Civil Code (BGB) may always terminate in text form.
(5) For the domain registration relationship, partially deviating provisions apply with regard to termination, which are listed in § 13 of these General Terms and Conditions.
§ 5 Prices and payment
(1) Usage-independent charges are due and payable in advance for the respective contract term, unless a different billing period has been agreed with the customer. Usage-dependent charges are due and payable at the end of the respective billing period. All charges are based on the prices agreed with the customer for this purpose.
(2) The customer shall be in default even without a reminder if he does not pay within 14 days after receipt of an invoice.
(3) Unless otherwise agreed, payments by the Customer shall be made by SEPA direct debit. Unless otherwise agreed, the Customer shall grant the Provider a mandate for the SEPA basic direct debit procedure to collect all fees incurred within the framework of the contractual relationship. The mandate also applies to new bank details provided by the Customer. The Provider shall notify the Customer in good time in advance of the corresponding direct debit collection. The Customer shall ensure that his account has sufficient funds in the agreed debit period. The Customer shall be obliged to compensate the Provider for any loss incurred as a result of any refusal to pay on the part of the account-holding institution.
(4) In case of payment via Paypal, the corresponding GTC of Paypal shall apply in addition to the present ones. The customer authorises the provider to collect the respective invoice amount from his Paypal account.
(5) In the event of default in payment, the Provider shall be entitled to demand interest in the amount of 10% per annum. In contrast, the Customer is entitled to prove that no or a significantly lower interest loss has been incurred.
(6) The Provider shall provide an electronic invoice in each case. The customer agrees 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 blocking of services does not affect the customer's obligation to pay.
(8) The customer may only offset claims of the Provider against undisputed or legally established counterclaims. This does not apply to warranty claims of the customer, insofar as these are set off against the Provider's claim for payment.
(9) Private customers shall be charged the VAT rate applicable in their respective EU country.
§ 6 Warranty
(1) The Customer shall notify the Provider of any defects without delay and shall support the Provider to the best of its ability in any possible rectification of defects, in particular by taking 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 hardware and software used or provided by the Provider meets the Customer's requirements, is suitable for certain applications, and furthermore that it is free of crashes, errors and malware. The Provider warrants to the Customer only that the hardware and software used or provided by the Provider will function substantially in accordance with the manufacturer's specifications at the time of provision, under normal operating conditions and with normal maintenance.
§7 Liability
(1) The Provider shall be liable, irrespective of the legal grounds, only in accordance with the following provisions.
(2) The Provider shall be liable for intent and gross negligence in accordance with the statutory provisions.
(3) In the event of slight negligence, the Provider shall only be liable in the event of a breach of a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Customer may regularly rely (cardinal obligation). In these cases, the Provider shall only be liable to the amount of the foreseeable, contract-typical damage.
(4) In cases of slight negligence, liability for all other damages, in particular consequential damages, indirect damages or lost profits, is excluded.
(5) The above limitations shall not apply in the event of injury to life, limb or health, or in the event of liability under the Product Liability Act.
(6) Insofar as the Provider's liability is excluded or limited, this shall also apply to the liability of the Provider's employees, other staff, representatives and vicarious agents.
(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 statutory data protection provisions. Supplementary information on this can be found in the data protection declaration of Host Europe GmbH.
§ 9 Copyrights, Licence Agreements
(1) The Provider grants the Customer a non-exclusive (simple) right of use, limited in time to the term of the contract, to its own and third-party software provided. The transfer, except with the Provider's consent by way of contract takeover, as well as the granting of sub-licences to third parties are not permitted. Further use after termination of the contract is not permitted; copies of software provided shall be deleted by the customer after termination of the contract.
(2) For open source programmes, the respective valid licence conditions of the provider of the software shall also apply. The Provider shall make these available to the Customer upon request. Insofar as the terms and conditions of the software provider conflict with these Terms and Conditions, the terms and conditions of the software provider shall take precedence.
(3) For Microsoft products: Some services offered by the Provider are made available to the Customer directly by Microsoft; the contractual partner remains the Provider in this case as well. 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 form part of the Agreement, including the data protection and data handling provisions set out therein. Customer understands and agrees that Microsoft may use, store or process Customer's data (including personal data) in accordance with the Microsoft Cloud Agreement. When booking Microsoft products, the customer accepts the corresponding regulations and policies of Microsoft.
(4) In all other respects, the licence conditions of the respective software manufacturers and, if relevant, the manufacturer- or software-specific additional conditions of the Provider shall apply.
§ 10 Exemption
The Customer undertakes to indemnify the Provider internally against all possible claims by third parties which are based on illegal or infringing actions by 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 infringements as well as to infringements 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, a legal entity under public law or a 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. The Provider is furthermore entitled to sue the Customer at his general place of jurisdiction.
(3) The Provider does not participate in dispute resolution proceedings before a consumer arbitration board.
§ 12 Miscellaneous
(1) All information and declarations of the Provider, with the exception of termination declarations, may be sent to the customer electronically, in particular via the KIS or by e-mail to the e-mail address provided by the customer. However, the restriction of § 4 para. 4 shall apply to termination declarations by the Provider.
(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 invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision. The same shall apply in the event of a loophole in the contract.
PART 2 SPECIAL CONDITIONS
§ 13 Special Terms and Conditions for Domains
(1) If the Customer registers a domain via the Provider, the contract shall be concluded directly between the Customer and the respective registry or registrar. The Provider shall act for the Customer within the framework of an agency relationship. Therefore, the relevant registration conditions and guidelines of the respective registry or registrar apply.
(2) The registration of domains is carried out in an automated procedure. The Provider has no influence on the allocation of domains. It therefore does not guarantee that the domains applied for on behalf of the customer can be allocated (delegated) and are free of third-party rights.
(3) The customer shall be obliged to cooperate in a reasonable manner in the registration, transfer and deletion of domains as well as in the modification of entries in the databases of the registries.
(4) The customer guarantees that his domains and the contents accessible 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 content, other national legal systems must be observed, as it were.
(5) If third parties credibly claim that domains or contents infringe their rights, or if the Provider is convinced that an infringement of rights is probable due to 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 claims for compensation by third parties based on the unauthorised use of an internet domain or the associated content.
(7) If the Customer renounces a domain vis-à-vis the respective registry or the registrar, the Customer shall inform the Provider thereof without delay.
(8) The termination of the contractual relationship with the Provider shall in principle not affect the registration contract for a domain existing between the Customer and the registry or the registrar. Cancellation orders concerning the registration relationship shall nevertheless be addressed to the Provider, since the Provider administers the domain on behalf of the Domain Holder and notifications from the Domain Holder, including contract cancellations, shall regularly be forwarded to the respective registry or registrar via the Provider.
(9) The customer's termination of the contractual relationship with the Provider therefore requires the customer's express written declaration that the domain is (also) terminated and can be deleted in order for the registration relationship for a domain to be validly terminated at the same time. If the customer is not also the domain holder, the termination or deletion order requires the written consent of the domain holder or admin-c. In both cases, "in writing" shall mean the form permitted under § 4 (4) sentences 1-3.
(10) The period for issuing domain termination orders 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 immediately forward late domain cancellation orders to the registry. It is clarified, however, that if a termination order concerning the domain registration contract is not issued by the customer in due time and therefore the term of the domain registration is extended vis-à-vis the registry or the registrar, the customer's obligation to pay remains in force for the period of the extension.
(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 to date, the obligation to pay for the domains shall also remain in force until further notice. After an unsuccessful request to the Customer, sent to the e-mail address deposited by the Customer, to declare his position on the domains in writing (within the meaning of § 4 para. 4 of these GTC) within a reasonable period of time, the Provider shall be entitled to transfer the domains to the direct administration of the respective registry or to release the domains in the name of the Customer. The same shall apply in the event of termination of the contractual relationship with the Customer by the Provider.
(13) If domains are not placed in the administration of another provider by the Customer 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 shall be entitled to transfer the domains to the direct administration of the respective registry or to release the domains on behalf of the Customer. This shall also apply in particular 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 due time.
§ 14 Special conditions for e-mail services
(1) The customer shall retrieve incoming messages in his e-mail boxes at regular intervals. The Provider reserves the right to delete personal messages received for the Customer if they have been retrieved or forwarded by the Customer or have not been retrieved by the Customer within three months of receipt on the mail server. The Provider further 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 reasonably limit the size of incoming and outgoing messages.
(2) The Provider may reject e-mails sent to its customers on the basis of objective criteria if facts justify the assumption that an e-mail contains harmful software (viruses, worms or Trojans, etc.), the sender information is false or disguised, or it is an unsolicited or disguised commercial communication.
(3) The sending of so-called spam mails is prohibited. This includes in particular the sending of inadmissible, unsolicited advertising to third parties. When sending e-mails, it is also prohibited to provide false sender data or to disguise the identity of the sender in any other way. In the case of commercial communication, the customer is obliged to make this character clear by means of an appropriate design of the e-mail and to comply with the legal requirements applicable to this.
(4) If the Customer sends spam mails within the meaning of the preceding paragraph, the Provider may temporarily block the relevant mailboxes of the Customer.
§ 15 Special Terms and Conditions for Hosting Products, Dedicated and Virtual Servers
(1) The customer expressly assures that the provision and publication of the contents of the web pages or data posted by him do 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 content that appears questionable in this respect. The same applies if the Provider is requested by a third party 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 third party rights or any other legal violation is not to be feared, the Provider shall make the affected websites available to third parties again. The Customer hereby indemnifies the Provider against claims for compensation by third parties based on unlawful content of a website of the Customer.
(3) The provision of the following services is prohibited to the customer:
(4) If the customer alone has administrator rights, the provider cannot manage the server. The customer is therefore solely responsible for its content and the security of the server. It is incumbent upon him/her to install security software, to regularly inform himself/herself about security vulnerabilities that become known and to close known security vulnerabilities. If the Provider makes security or maintenance programmes available, this shall not release the Customer from his obligation.
(5) The customer is obliged to set up and manage its servers in such a way that the security, integrity and availability of the networks, other servers, as well as software and data of third parties or the provider are not endangered.
(6) If a customer endangers the security, integrity or availability of networks, other servers, as well as software and data of third parties or of the Provider by means of its server, or if the customer is suspected of doing so due to objective circumstances, the Provider is entitled to temporarily block the server. This also applies in particular to so-called denial of service attacks (DoS attacks) carried out by the customer via his server and also in the event that the customer is not responsible for the harmful 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 (see section Special conditions for e-mail services) are sent via the server, the Provider may also temporarily block the server.
(8) Unless otherwise agreed, the Provider is not obliged to back up Customer data. If the Customer commissions the Provider to back up data, the Customer shall 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 shall 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 licence provisions. Within the scope of this, the Provider is in particular entitled to check whether the Customer has obtained a sufficient number of software licences. The customer is obliged to cooperate in the verification. This includes providing the Provider with necessary information and data within a reasonable scope and period of time as well as the (permanent) installation or toleration of the installation of corresponding programmes for this purpose on the servers of the Customer.
11.02.2020
