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The terms and conditions were translated by an accredited translator. Due to German jurisprudence this translation shall have informative character only. German law stipulates that only the German original shall be relevant.

1. Area of Application

The general terms and conditions herein govern the contractual relationship between Bitpalast GmbH, located in Berlin-Charlottenburg (subsequently referred to as ), and their customers. They shall form the basis of all deliveries and services from to its customers. Contractual relationships arising in connection with deliveries and services by between customers and third party suppliers shall also be subject to the suppliers' terms and conditions. In case of domain registration contracts, in particular, the terms of the respective Network Information Center (NIC) shall apply. Should the customer have contractual relationships with third party suppliers in foreign countries, the terms and conditions of such suppliers shall apply as well.

Terms and conditions of customers, which deviate from or oppose the terms herein, shall not apply unless explicitly agrees to the application of such terms in writing. In particular, the application of the terms and conditions herein shall not be excluded, if renders deliveries or services without reservation to customers whose terms and conditions deviate from or oppose its own terms and conditions.

2. Application of Foreign Law

In the event that parties contractually agree on a subject matter connected to a third country, the customer agrees to abide by the laws applicable in such country. A connection to a third country shall apply in particular, if a web hosting server is located outside of Germany or if the customer uses website software whose licensed use was agreed to be governed by the laws of a third country.

3. Formation of Contracts

A contract with becomes binding by implication if they undertake fulfillment actions in response to an offer made by the customer. Indications of deliveries and services by shall be considered as an offer request and shall be non-binding. Prices are subject to change, if factual reasons are present. In particular, a factual reason could be a fee increase made by the NIC. If such changes have significant impact upon the customer's calculation, he shall be entitled to withdraw from or terminate the contract. Notice of withdrawal or termination must be given within four weeks after receiving the notification of change, at the latest.

4. Domain Registration and IP-Addresses

4.1 Registration of a domain name will lead to a direct business relationship between the customer and the respective NIC. The customer shall be the sole contractual partner of the NIC in regard to the registration contract. Upon request by the customer may act as a messenger and submit the registration order. In this case the customer will bear the risk of correct and timely submission of said message.

4.2 The customer shall have no rights to IP-addresses allocated by . Upon notifying the customer in writing, reserves the right to exchange, amend or delete all or individual IP-addresses. shall not be responsible for expenses incurred by the customer as a result of such actions, if these actions are made for important reasons.

5. Password

The customer will receive a user-ID and password to access his data. The customer shall change the original password immediately to ensure the safety of his data.

6. Main Contractual Duties

6.1 The customer must not publish politically extremist or religiously fanatical content, or content which is not in line with free democratic basic order.

6.2 In particular, the customer shall abide by all laws as well as copyright, labeling and competition regulations and private law.

6.3 The customer must not publish child pornography or other pornographic content.

6.4 For products subject to limits in terms of data transfer or data storage volume, the customer shall pay costs arising from exceeding such limits upon receiving the respective invoice.

6.5 The customer shall keep access data such as his user-ID and password safe and confidential.

7. Consequences of Failing to Perform a Main Contractual Duty

If the customer violates one of his duties stipulated in sections 6.1 through 6.5, he shall prevent further violations, compensate for any damages, and he shall also indemnify against damages caused to third parties, including legal expenses. Other rights on the part of , particularly regarding blocking content and extraordinary contract termination, remain unaffected.

8. Contract Execution

8.1 guarantees web server availability of 99% per year, unless and the customer have expressly agreed on a different arrangement in writing. One percent of each month's operating time may be used for maintenance purposes. shall not be responsible for technical and other malfunctions beyond its control, such as malfunctions of the internet infrastructure by national and international network operators, or malfunctions caused by the customer.

8.2. In case of services such as Dedicated Server and Modular Hosting Solutions, will perform initial configuration of hardware and software. will not perform any additional services to the customer, other than the maintenance and support services for hard and software specified in the service order form. Maintenance and support services do not include services for malfunctions caused by (a) tampering, modifications of or additions to hardware and software performed by persons other than personnel or persons authorized by or (b) the customer's hard or software.

8.3 The customer shall make backup copies of data material submitted to and data material provided by on behalf of the customer and transferred to servers.

9. Protection of Intangible Goods

9.1 Each party shall observe the other party's rights to intangible goods and commits to not violating such rights. Unless otherwise agreed to in writing, none of the parties shall have a right to claiming rights to intangible goods rights of the other party. Except to the degree necessary to fulfill this contract, none of the parties shall copy, amend, translate, decompile, disassemble or reverse-engineer matters of intangible goods rights of the other party or use intangible goods rights of the other party, other than in connection with the services agreed upon in the respective contracts, or give such rights to third parties.

9.2 The customer acknowledges that all rights to technology, including services and software which are part of such services or supplied along with them, and all trademarks belong to and/or licensors. Unless otherwise expressly agreed by both parties in writing and unless authorized by in writing, the customer does not have authority to use intangible goods of or authorize third parties to such usage, unless the customer is excluded from using intangible goods rights within the limits (i) integrated in the services and (ii) necessary for the customer in order to use the complete functionality of the agreed services.

10. Confidential Information

10.1 Both parties commit to absolute confidentiality, including all employees and other parties included in this contract who have access to information of the other contract party and/or contractual matters, regarding such information toward non-connected third parties, and implicit protection of said confidentiality.

10.2 Not prohibited or limited by these terms is the use of information by either party, which (a) is or will be publicly known or available through legal means; (b) will be disclosed to the receiving party without confidentiality or protection limitation by a third party which legally owns and discloses the information; (c) was independently developed by the receiving party without violating this contract; (d) forms the subject of a written authorization for disclosure by the disclosing party; or (e) must be disclosed due to legal reasons, a court order or an order by any state or supervisory authority. The burden of proof for such an exception rests with the party invoking the exception.

11. Customer Content and Data Transfer

11.1 The customer is solely responsible for the content within the data storage space used by him ("customer content"). He shall take care of backing up and restoring such content, unless otherwise agreed in writing with .

11.2 The contents made available by the customer shall not violate any third-party patent, copyright or property rights.

11.3 The customer is aware that unencrypted, electronic communication is generally not confidential. Hence, by using this type of communication he bears the risk of unauthorized entities spying on such data.

11.4 Personal data and customer-related content are stored only on servers inside the European Union, the United States or Canada, unless otherwise agreed in writing by the customer and .

11.5 The customer is solely responsible for the development, operation and maintenance of the website as well as the customer's content, including online and offline sales of his products and services.

12. Intermediate Storage

The customer expressly authorizes to store the entire website of the customer, including all of the customer's content to enable to fulfill this contract.

13. Duty of Payment, Method of Payment

13.1 All deliveries and services for customers in the European Union are billed in Euros according to currently valid price lists. Customers outside the European Union will be billed in US dollars, unless and the customer have expressly agreed to use service fees, other fees or different currencies in writing in the service order form. In case of doubt, all prices or fees are net amounts without the respective value added tax. Customers whose monthly net bill is below €100.00 will be billed for 3 months in advance, unless otherwise expressly agreed in writing by and the customer, or unless has offered a different arrangement.

13.2 If, upon the customer's request and on his behalf, has submitted a registration order for a domain name under the ".de" top level domain, the customer's duty of payment rests with DeNIC eG in Frankfurt am Main, as long as properly pays DeNIC eG fees. This proper payment is dependent upon the respective payment by the customer to . In case of irregularities with the payment of DeNIC eG fees by the customer to
, shall have the right to terminate the payment for a domain, giving seven days advance notice if such an intention is present. In this case the customer's payment duty toward DeNIC eG will come into force. Payment will be made by direct debiting or credit card, bank transfer or Paypal. If, due to return debit notes, bills are made out for settlement by other means, a service fee of €7.70 plus VAT will be charged. The customer shall also pay the bank's fees for return debit notes, which such banks will charge for non-redeemed debits. If, due to return debits from credit card payments, bills are made out for settlement by other means, a service fee of €7.70 plus VAT will be charged. The customer shall also pay the credit bank's chargeback fees, which such credit banks will charge to . Checks will be accepted on account of performance.

13.3 Invoices made out by are due for payment 8 days after the invoice date. The customer shall reimburse any costs in connection with a non-redeemed or rejected debit note or a rejected credit card payment, unless it is evident that the customer has taken due care and the damage would have been created even so. The customer shall verify the correctness of his received invoices on a regular basis. Objections to invoiced, usage-dependent fees should be made in writing to within four weeks after receiving the respective invoice.

13.4. The fees stipulated in the service order form are guaranteed throughout the minimum contract period. If the customer continues to receive services after the minimum contract period has elapsed, without entering into a new contract or extending the original contract, the fees invoiced after the minimum contract period shall be those applicable and specified in the pricelist for services without discount.

14. Suspension

14.1 After giving prior notice stipulating a deadline, shall be entitled to suspend the customer's access to his data (suspension), if the stipulated deadline elapses without effect. In the event of suspension and depending on the subject matter of the contract, the customer will have no access to internet services through his account. If dedicated servers or modular hosting solutions are the subject matter of the contract, they will be shut down. During a suspension users will not be able to access the information offered by the customer. A payment reminder may include a threat of suspension. During the suspension period the customer's obligation to pay fees remains intact, since the customer's data continue to be stored by . In case of imminent danger is not required to give notice of imminent suspension.

14.2 The following circumstances, in particular, are subject to suspension:

14.2.1 a violation of the obligation stipulated in sections 6.1 to 6.3, or
14.2.2 late payment of an invoice, or
14.2.3 a suspicion of illegal content in the customer's material or a claimed violation of third-party rights, after the customer had been duly informed, or
14.2.4 improper use of infrastructure. Improper use shall be present, in particular, if the customer
14.2.4.1 sends unsolicited electronic commercial communication (spam mail), or
14.2.4.2 sends unsolicited electronic communication in form of mass mailings with or without commercial purpose (junk mail), or
14.2.4.3 uses software such as scripts, which affect or are capable of affecting the operation behavior of the infrastructure, as part of the respective contract.

14.3 The suspension is maintained to prevent liability on the part of until the customer presents or verifies the legality of his content. The same shall be true in case of an investigation by the prosecutor's office. Suspension shall be excluded only in cases of obviously unfounded warning letters by third parties.

14.4. Deletion of Customer Data

If the customer continues to fall behind on his payments during a suspension period, shall be entitled to delete the customer's material without prior notice and to use the available contract matter for different purposes.

15. Termination of Contract

Notice of termination must be given in writing. Proper or extraordinary notices of termination do not affect the domain registration contract.

15.1 Proper Notice of Termination
The contract may be terminated by either partner at the end of the minimum contract period. The written notice of termination must be received by the other party 65 days before the minimum contract period elapses. If none of the partners terminate the contract, it will extend automatically by another minimum contract period. Termination of the extended contract is governed by the same rules as stated above.

An unlimited contract may be terminated by either party upon 20 days of notice before the end of the current month (date of receipt of notice), taking effect at the end of the following month. Notice of termination must be given in writing and include a signature. Alternatively, a termination option in the password-protected customer's account may be used, if such option is available for the service to be terminated. If termination notice for an unlimited contract, for example, is given on June 10 (date of receipt of notice), the contract shall end on July 31. If termination notice for an unlimited contract is given on June 11, the contract shall end on August 31.

15.2 Extraordinary Termination
Either party is entitled to terminate the contract without notice, if an important reason is present. A circumstance will be considered an important reason, particularly if

15.2.1 the other party (a) is insolvent or (b) assigns a debt violating section 20.
15.2.2 the customer culpably violates his duties according to sections 6.1, 6.2 or 6.3, or
15.2.3 the customer has fallen behind on two consecutive fee payments or a significant part thereof, or in a period of more than two due dates has fallen behind on a payment in an amount corresponding to two months, and if the customer has caused this delay in payment.

16. Liability

Liability for initial deficiencies on a matter provided to the customer for use by is excluded. Liability for the allocation of a domain name is excluded. shall be liable without limitation for damages brought about by deliberate or grossly negligent conduct on the part of Bitpalast GmbH or their vicarious agents. In case of violating contractual duties, which are critical to fulfilling the contract goal (cardinal obligations), shall be liable, even in cases of slight negligence. In the latter circumstance, liability shall be limited to losses typical for this type of contract.
Contributory negligence on the part of the customer or his vicarious agents shall be taken into account.

Liability for warranty, fraudulent intent and personal objects of legal protection remains unaffected.

There is no liability for the violation of third-party rights or damages to third parties due to granting usage and exploitation rights. This shall not apply in cases in which is aware of third-party rights or damages to such parties or cases in which is unaware of such rights and damages due to gross negligence. and the customer shall inform each other about any rights claims brought to their attention. Hereby, all rights and duties of Bitpalast GmbH and the customer in terms of the violation of commercial rights and copyrights are regulated in a conclusive manner.

17. Warranty

renders its services according to the current state of science and technology, taking into account any current industry standards, unless otherwise agreed by both parties in writing. The Bitpalast data processing center is certified to ISO/IEC 27001:2005.

18. Force Majeur

is not liable for delinquency or delay in fulfilling its duties, if such delinquency or delay is due to circumstances outside of their control, including and not limited to actions undertaken by any governmental body, or due to war, riots, sabotage, embargo, fire, flooding, strike or interruption of work.

19. Amendment or Waiver

Amendments of or additions to the agreement between and the customer must be done in writing.

20. Assignment

The customer may assign rights and duties from this contract to a third party only upon prior written consent by .

21. Notifications

In case of doubt, all notifications to the customer will be sent to the billing address indicated on the signature page.

22. Amendment of Terms and Conditions

shall be entitled to amend or complement these terms at any time. If the customer does not object to the amended terms within four weeks after receipt of the notification of amendment, the new terms shall take effect for existing contracts as well, as laid out in the notification. If the customer objects before the deadline elapses, shall be entitled to terminate the contract at the time the amended terms are taking effect.

23. Place of Performance

Place of performance for all deliveries and services provided by is D-14055 Berlin, Germany.

24. Exclusive Jurisdiction

The jurisdiction for all claims due to the contract between and the customer, including actions on checks and bills as well as any disputes between the parties regarding the execution or termination of the contract shall be Berlin, unless the customer is a registered trader, a corporate body under public law or special property subject to public law.

25. Replacement of Invalid Clauses

If individual provisions of these terms and conditions are invalid or become invalid, it shall be agreed at this time that invalid or prospectively invalid portions will be immediately replaced by provisions, which come closest to the intended commercial purpose. All other parts of the terms and conditions shall remain in effect.

Last updated: 11/2010 revision a

 

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