General Terms and Conditions of Excellent AD GmbH
The English translation of our Terms and Conditions is provided for the convenience of our non-German-speaking customers. Regardless of this, only the original German-language version is legally binding.
General Terms & Conditions:
Any variation from these general terms and conditions, additional covenants or agreements must be submitted in writing or by way of an expressed written confirmation. By accessing this on-line service the end-user accepts the general terms and conditions and respectively the terms of use. Use of the on-line product and services herewith provided is strictly forbidden without acceptance of the general terms and conditions and respectively the terms of use. These terms and conditions also apply to future business transactions, especially for the extension of services on the part of Supplier within the scope of the existing contract, including when no specific reference is made. Any discrepancy with the terms and conditions on the part of the client are herewith not acknowledged. This non-recognition of contrary terms and conditions applies to all cases, including when the services provided by Supplier became valid and were perhaps initially rendered implicitly to a particular client. The current general terms and conditions shall always apply, including to any and all future agreements. Should the Supplier´s general terms and conditions suffer any changes, the new regulations shall be effective 14 days after their announcement in the Supplier´s on-line service. The revised terms and conditions shall apply to all legal transactions, unless the client expresses a written reasonable objection to the changes proposed by Supplier within the above-mentioned 14-day term. The range of products and indications concerning the product provided are subject to confirmation unless a written warranty is submitted. Supplier remains free to perform services in the course of technological advances. This includes employing new, and as the case may call for, different technologies, systems, methods or standards in the services offered, as long as this does not cause drawbacks to the client. The transfer of any rights and obligations of the license agreement requires written approval on the part of Supplier. When opening an account the end-user acknowledges that s/he understands the corresponding applications mentioned in the contract and is aware of the minimum age requirement for these applications. Any violation on the part of the end-user of the herewith referred-to conditions can lead to the immediate cessation of the services rendered. The cessation of services may be permanent.
Waiver on compensation for damages claims
The end-user waives the right to place any claims against Supplier for any damages caused by using, downloading or accessing any of the data or services offered by the Supplier. The end-user specifically waives the right to place claims for any malfunction of his/her computer (e.g. viruses, bugs, deletion of documents, unloading, defects, delays in operation or in transference, theft, destruction, unauthorized access or alteration of data) as well as violation or damage of any additional hardware or software in connection to the use of the on-line services or any of the services offered. The same applies to technical problems and malfunctions of on-line computer systems, servers, providers and computer accessories in connection with, or as a result of, the process of making use of the services.
No warranty or liability for third parties
Supplier assumes no warranty or liability for texts, images and/or any other contents offered by third parties which are accessible through Supplier´s on-line services (e.g. hyperlinks, e-mail, chat-rooms, sub-domains and forum contributions).
Limitation of liability for deliberate acts or negligence
According to the mandatory applicable above Supplier is liable only for reckless negligence and deliberately caused losses, damages etc. Liability for slight negligence is hereby not acknowledged. This is also applicable for actual fault and, as the case may be, institutional defaults or for vicarious liability. Liability for uncontrollable acts of nature is hereby not acknowledged. To the extent that Supplier is appropriately excluded from liability by the applicable provisions, this exclusion from liability is extendable to the personal liability of Supplier´s workers, employees, collaborators, representatives and auxiliary personnel. Supplier is not liable for simple negligence as long as the damage does not fall under its cardinal or its essential obligations. The main service liability within the scope of the service provider encompasses securing the execution normal operation under contract. Supplier assumes no liability for the arousal of any incidents causing damages within the scope of the current line provider, usually the Deutsche Telekom AG. Secondary obligations, which are in turn a necessary pre-requisite for the adequate execution of the contract must also be taken into account and are also included within the scope of the main obligations. Supplier does not acknowledge a right to compensation for continuous availability, as long as the system malfunction could not have been avoided despite a maximum diligence. Supplier disqualifies any further claims for any incidences of failure which may arise and are outside the sphere of Supplier´s responsibilities. Any further rights to compensation as a result of default or representing a (partial) - impracticality are limited to the typical damage claims. Furthermore, any liability claims for any service delays and/or malfunctions caused by uncontrollable acts of nature and/or unforeseeable, only temporary impairments and causes not traceable to Supplier, are hereby not acknowledged. Official regulations, strikes, lock-outs and lawful company internal industrial dispute measures are included within this range of impairments. Additionally, all total or partial malfunctions of the corresponding necessary communications and network structure service provider, as well as gateways and other service providers and operators are herewith included. The applicable compensatory payment in the form of reimbursement of prepaid charges pertaining to malfunctions caused by disruptions not within the provider's scope of responsibility will be disbursed only when the malfunction extends to more than a two full working-day time period. Liability arising from a failure of elements under warranty, consequences or consequential harm caused by a defect, as well as the liability deriving from the product liability obligation acts (§ 14 product liability act), are exempt from the aforementioned liability disqualification. We assume no responsibility for disruption and malfunction of the Internet itself, as we have no influence over such problems. The maximum amount of liability and compensation for damage claims is limited to the value of the contract. A special warning is hereby issued that no liability shall be assumed for the loss of data in our servers. Supplier shall not be held responsible for possible claims arising from unauthorized access (or similar issues) due to the loss of a password. Supplier assumes no liability for the loss of data stored in the Supplier computer systems. Supplier is under no obligation to create data backup copies. Neither does Supplier assume any liability for the dissemination of confidential data stored in the Supplier computer system. Supplier assumes no liability for the violation of the minimum age requirement measures of applications of any type. Supplier assumes no liability for contracts existing between the end-user and other partners or sponsors. Supplier does not screen its client's content to the effect of whether claims raised by third parties are justified or not. In this respect, it is widely accepted practice in the Internet realm that contents be blocked pending a judicial review on the credibility of the demands made by every third party. The client therefore agrees to block access to its content in cases where substantiated claims by third parties are raised.
Copyright-/trademark and fair competition protection
The images, text, audiovisual and all other contents offered by Supplier are protected by copyright, fair competition and trademark laws. Any duplication, dissemination, posting, publication, transfer, storage or copying into databanks or memory devices of any similar type, communication to the public or any other use of processed or unprocessed Supplier contents and all the services it provides on the part of end-users, other than for personal use, is therefore strictly forbidden without the previous written consent from Supplier.
Ban on illegal contributions
Introducing illegal written and/or image contents into the Supplier´s program on the part of the Supplier´s service end-users is strictly forbidden. This particularly refers to contents or other forms of expression which violate penal provisions or otherwise insult, threaten, are blasphemous towards a people, incite to crime, or are racist, obscene and pornographic. It is likewise forbidden for end-users to post material containing advertising for other products, especially programs offered by other service providers in the Supplier. The unauthorized use of copyrighted or third party trademark-protected material is also forbidden.
Services rendered
The supplier offers on-line data bank services and news services and web service. The basis of these services is the possible lease of on-line and services and web services on the Internet. These Supplier´s services shall be provided to the client with the greatest knowledge and conscience. Supplier guarantees a yearly average of 95% availability of its services. Warranty claims for services not performed as a result of technical failures originating in problems or reasons not caused by and/or which cannot be influenced by Supplier cannot be raised. In such cases Supplier makes the effort to re-establish unobstructed technical operations within the framework of its possibilities. Supplier withholds the right to make any necessary changes or expand its services in order to improve or facilitate its further technical development. Supplier obliges itself to make only those changes which fall within a reasonable framework for its clients and which take its own interests into account. Supplier guarantees the availability of its Internet server only for those clients who pay for its services. Binding delivery dates must be stipulated in writing. The agreed upon delivery term begins on the date the order is accepted. The deadline is met when the delivery item is available for use before the term expires. The delivery term is extended, where applicable, for the period of time until the purchaser gives us all the information and documentation necessary for the execution of the work order. The delivery time is extended for the necessary period of time within the framework of measures taken as a result of work stoppage, particularly strikes and lock-outs, as well as circumstances out of our control, such as legal or official regulations or in the case of delivery impediments due to uncontrollable acts of nature. The circumstances described above shall not be traced back to us even when they arise during an already-existing delay. We will inform the client as soon as possible of the outset and end of such impediments in the more serious cases.
Rescission and compensation for the non-execution of orders
Supplier shall withdraw from a contract when the stoppage of payments, the raising of bankruptcy or composition proceedings, the denegation of bankruptcy status lacking matter, draft or check reclamations, or any other ascertained indications of a deterioration in the economic situation of the purchaser of our services become known. I cases where Supplier withdraws from a contract because the order cannot be executed for reasons traceable to the client, the client must pay a compensation for Suppliers disbursement and losses equivalent to a fix fee of 50 Euros. Supplier reserves the right to verifiably demand higher compensation. The lump sum compensation may be reduced to the extent in which the client proves that the disbursement and/or the damages were not caused or were not caused for the amount of the setup compensation.
End-Customers right to withdrawal
According to German civil code §361a the client is entitled to the right of withdrawal if he is an end-customer according do German civil code § 13. The withdrawal term begins at the moment when the client gives clear and specific instructions about his/her right of withdrawal, which conform to requirements on the appointed means of communication which make his/her rights to the availability of stable data processing media clear. However, the term cannot begin before the day the client receives the product. The withdrawal term amounts to two weeks. The withdrawal does not require any grounds. The timely dispatch of the withdrawal to the Supplier address provided above is enough to ensure that the term is met.
Use of client data
In compliance with the federal data protection act, we have the right to handle all data within the scope of the business relations with the client. Supplier electronically stores all the client's data during the contractual relationship, as long as this is necessary to execute the intended purpose of the contract, particularly for accounting purposes. Supplier may also process and use the client and stock data for advertising and for internal market research purposes. Statistics and end-user data shall be disseminated in a solely anonymous way. End-user personal data, contents or information shall not be transferred to any third parties. Supplier obliges itself to protect all data, contents and information to the best of its ability. However, Supplier explicitly points out to its clients that data protection against data transmission in open networks, such as the Internet, cannot be comprehensively guaranteed in view of the current state of technology. Supplier does not allow for the use of the source codes it has created or any parts thereof, including graphics and symbols, as well as ideas and layouts without an explicit written consent. Supplier demands that its clients provide complete information about the stored database free of charge, in as much as it affects it.
Signing of the contract, duration of the contract and cancellation
The contract between Supplier and the client takes effect only when the client’s order is accepted by Supplier. The notification of the contract acceptance is sent to the client per e-mail and/or fax. The use of the Supplier´s services by underage clients is not allowed without the consent of his/her legal guardian. The signed written consent shall be sent to Supplier via fax or post. The transmission of the consent per e-mail shall not suffice. The contract shall be drawn for an initial one-month, three-month, six-month, twelve-month, twenty-four-month period (depending on the type of contract) for every individual server and, as the case may be, server group. The contract is extended tacitly for additional one-month periods respectively unless one of the parties cancels the contract in writing by the end of the initial and/or additional contract periods. The cancellation of the contract must be issued in writing at least two weeks prior to the end of the initial and/or additional contract periods. A transmission per e-mail shall not suffice. The right of both parties to cancel the contract on significant grounds, in accordance with the civil code, remains thereof intact.
Significant grounds in terms of the law constitute,
· when the end-user, in cases where a direct debit order is issued, closes the bank account to which the services are billed or cancels the direct debit order. · when the end-user is unable to pay and definitively refuses payment. · when the client violates the obligations listed in the general terms and conditions, particularly those in the contract, and a warning from the provider fails to induce any changes on the part of the client The provider reserves the right to temporarily discontinue its services due to delay in payment for the services provided or to discontinue the services definitively when the delay lasts more than 10 days. The end-user shall be informed of the imminent stoppage of services by means of a special reminder. The service provider is entitled to issue an extraordinary notice of cancellation in the case of a definitive refusal of payment. The cancellation must be issued in writing and may not be issued not via e-mail.
Compensation provisions
The prices quoted in the price lists include the current applicable sales taxes, which amount to 19%. The applicable prices for our services are those stated in the price list at the time the order is placed or accepted. The billing period is hereby determined to be for one month in advanced. A refund of already-paid charges in cases of premature cancellations is not possible. The invoice for the initial period of the contract shall be send per e-mail. Further invoices shall also be sent per e-mail. Supplier shall charge 2.05 Euro per invoice should the client request a special invoice to be sent per post. Payment shall be made to one of Supplier´s bank accounts within 5 days immediately after the invoice is issued, unless direct debit is issued. The payment is effective only at the point when Supplier can dispose of the amount due. Should a client, with residence outside of Germany, have more than one active contract and have one of these contracts due, all active contracts will be deactivated until the outstanding payment has been processed. Payment is due by virtue of having a server (e.g. even when it is temporarily deactivated) and does not depend on the availability of the server. Should direct debit billing be in place, Supplier has the right to debit the charge from the client's bank account, until cancellation by the client. To this end, the client shall provide all necessary information, particularly the bank details, when registering. Supplier has the right to charge the client (a flat rate of 30 Euros) for cancellation fees imposed as a result of the cancellation of the debit entry on the part of the client. The end-user automatically falls into statutory default 30 days after receiving the bill. From this point on, there shall be an outstanding payment request for a 5% interest of the corresponding valid base rate and the server shall be blocked. A 10 Euros charge for the issuance of every demanding letter is stipulated. Electronically-issued (per e-mail) requests for payment are hereby acknowledged by the client as binding. The client shall promptly notify us in writing of seizures or any other encroachments by third parties. We reserve the right to assert further damages claims. Only agreed-upon bills and checks shall be accepted. They shall be received as compliant and are valid only after their redemption as payment. We assume no liability for timely submittals. The buyer is entitled to retention rights in as much as counterclaims allude to the same contractual relationship. A summation of the buyer is not possible, unless, the objections raised by the client are legally ascertained or acknowledged by us.
Client obligations under the contract
The client is obligated to use the Supplier on-line services appropriately.
Accurateness of the data provided by the client
The client ensures Supplier that the all the information provided, particularly his/her name, address, telephone connections and bank account details are both correct and complete. The client is obligated to promptly send Supplier the current and correct data should there be any changes to this basic information. Any additional cases fall within the aforementioned changes, including the coming into inheritance and/or any other universal succession; as well as when a person is added or is withdrawn from the community of the client (business partnerships and community of heirs). Supplier reserves the right to end the contractual relationship, after warning the client in vain, should the client not meet these obligations.
Pledge of secrecy
The client is under the obligation to handle all passwords required and conveyed for the fulfillment and utilization of the contract in a strictly confidential manner. The client is hereby obliged to cover any additional costs and render any possible compensation arising from the use of a password by a third party. The client explicitly frees Supplier of any claims arising from the infringement of this obligation by third parties.
Clan server password obligations
The password may not be removed from servers with password protection. The full or partial password may not be contained in the server name. Should Supplier be able to prove that the server leaser has removed the password, this would constitute a violation of the general terms and conditions and, after a warning has been issued, the server rental contract shall be cancelled without further warning. No refunds shall be granted.
Additional end-user obligations
The lease-holder is especially barred from using the following services in connection with the use of the web space and services provided by Supplier: File Transfer Protocol (FTP) services or other services that exceed the normal volume of traffic. Pornography or erotic contents. Cell phone logos, ring tones, gambling, voting, or dating services, etc. Contents which are illegal, right wing extremist, obscene, threatening, insulting, defamatory or are scandalous. Contents that reveal private information about individuals without their consent. Contents which infringe upon trademarks, copyrights or other intellectual property rights. Contents which incite others to commit criminal acts. Activities that undermine the civil order or infringe upon local, national or international laws. Every Supplier´s client is obligated to remain informed of the most current terms and conditions. These can be accessed on the following Internet address: http://www.okvital.de, as well as per a request at any time. Objections to changes made to the terms and conditions which are not raised within 14 days, shall be interpreted as an acceptance. Registration, change, modification and cancellation of domains of an online presence Supplier fundamentally administers only non-binding information about the availability of a domain on the telephone or over the Internet. The DENIC or any other center may grant the domain to a third party during the time between when the information is given and the registration for the allocation is turned in; without Supplier gaining knowledge or having an influence. The registration of the domain will be carried out as a "de"-domain, unless something different has been agreed upon. The information provided for the registration will be forwarded to the DENIC or other respective centers in an automatic procedure without the assumption of any responsibility. The client can count on the actual allotment only once the Supplierhas made the corresponding Internet service available under the desired name. Supplier assumes no type of liability or guarantee for the allocation of a requested domain name, or for the allocation thereof during the interim, to a third party. Supplier serves all domains under the basis of the then-current guidelines of the appropriate registration center, particularly the DENIC regulations (visible under www.denic.de) for the duration of the contract entered into with the client. Supplier and the client are willing to change their contractual relationship should these guidelines suffer any changes or the general conditions for the registration and domain maintenance change for other reasons. Supplier files or carries out the registration of a domain in the name of and at the request of the client, and enters the client as the authorized user of the corresponding domain. For certain services, a single authorized user, who will have access, instead of the client, can be requested by the client per service. As is customary, Supplier will be entered as "tech-c". The client is aware that the name and address of the authorized users will be mandatorily stored in the DENIC as well as the RIPE databases and permanently stored in the so-called "whois" search engines on the Internet (e.g. on the www.denic.de), which may be viewed by he/she him/herself or by any third parties at any time. Supplier shall provide the necessary clearance without delay and without demanding special compensation should the client, or in some cases the other authorized user, want to continue using the domain through another provider after the conclusion of the contract, as long as all remuneration has been paid in accordance to the contract. The possibility of including an existing domain, which is being serviced by a different provider at the time, in the contractual relationship exists for certain services. The client is aware of the fact that clearance must be given by the provider who serviced the domain until that point, before a successful re-registration can take place. To this end, Supplier will make various attempts, up to a limited number of times, at performing a successful re-registration. However, Supplier cannot guarantee a successful re-registration in cases where third party providers fail to provide the necessary clearance. Even in cases of failure to provide clearance, the client must remunerate Supplier if payment has been previously agreed upon. A successfully re-registered domain shall be otherwise treated by Supplier and the client as a newly registered domain and be dealt with according to the pertinent regulations herein mentioned. Should Supplier cancel the contract on significant grounds, it is entitled to immediately cut off access to the Supplier´s Internet service and to end the maintenance of the assigned Internet addresses (domains) in respect to the respective registration center (e.g. the DENIC). Furthermore, in such cases Supplier has the right to immediately block access to all lodged contents and e-mail messages without issuing additional respite. The client agrees to provide the necessary explanations and to cooperate to the required degree in respect to changes of provider of a domain, as well as registration, modifications or deletion of a domain. The allocation guidelines mentioned above apply to all further domain types acquired by the client (e.g. .com, .at, .ch)
Provider rights
In addition, Supplier shall conduct spot checks of the website posted on the network by the client at irregular intervals and warn the client immediately should any reasonable suspicion about possible violations arise. Should requests for removal not be promptly obeyed, or rightfulness demonstrated/proven, the Supplier reserves the right to a preternatural cancellation of the contract. Supplier reserves the right to fundamentally block or, in individual cases, to prevent the operation of contents which may interfere with the normal performance of the server. Particularly in respect to CGI program modules, PHP4, and ASP which were not already contained in the program library. Supplier also reserves the right to block the client's services without previous warning should the client run programs of his/her own, within the framework of the service, which endanger the normal performance or security of the server. Supplier grants itself the right to thoroughly test every server during the course of the year. Hard and software changes may take place in connection with servicing when necessary. The server shall not be available during this time. The servicing work will be announced in the news. The client shall not be granted any reduction in lease costs as a result of servicing. The client agrees to allow Supplier to send information and advertising, within a reasonable scale, to the end-user's e-mail address as long as this option does not disable his/her personal profile. These e-mails shall be marked in an appropriate fashion with the purpose of differentiating them.
Miscellaneous
The client is hereby once more explicitly warned that Supplier may view all the client information stored in its servers at any time for technical reasons. The contract entered into by the client and Supplier is subject to German law by concurrent announcement of the provisions on the standardized United Nations Convention on Contracts for sale of transferable property. The use of the services under contract by third parties, as well as the transfer of these services to a third party in return for money requires the explicit written consent from Supplier. Should a resale be agreed upon, the resellers are obliged to transfer these binding terms and conditions to their contracting party and in this regard shall apply to Supplier without complaint or compensation. The client has, unless specifically agreed upon, no claim to an IP address, an actual physical server for his/her web contents of his/her own assigned wideband (a line with a capacity for the transfer of data). The company makes use of a high-capacity host system (server) with an IP address and a joint wideband for the respective server, through which fluctuations in the actual availability of the wideband for the client are possible, with the purpose of achieving necessary cost reductions.
Payment and legal venue, partial inoperativeness
The stipulated payment venue of all debt on both sides for services under the contract, including eventual claims to compensation, shall be our head office. In business dealings with suppliers that do not fall under the manufacturers referred to in § 4 HGB and with legal entities of the public law, the stipulated legal venue for all litigation arising from the contract, including claims on checks and on bills of exchange, is our head office; which also has the right to place claims in the client's venue. All remaining provisions remain in effect despite the nullification of specific provisions in the supply agreement or of these general terms and conditions. German laws apply to cross-border deliveries.
General Terms & Conditions:The following terms and conditions apply to all services.
Any variation from these general terms and conditions, additional covenants or agreements must be submitted in writing or by way of an expressed written confirmation. By accessing this on-line service the end-user accepts the general terms and conditions and respectively the terms of use. Use of the on-line product and services herewith provided is strictly forbidden without acceptance of the general terms and conditions and respectively the terms of use. These terms and conditions also apply to future business transactions, especially for the extension of services on the part of Supplier within the scope of the existing contract, including when no specific reference is made. Any discrepancy with the terms and conditions on the part of the client are herewith not acknowledged. This non-recognition of contrary terms and conditions applies to all cases, including when the services provided by Supplier became valid and were perhaps initially rendered implicitly to a particular client. The current general terms and conditions shall always apply, including to any and all future agreements. Should the Supplier´s general terms and conditions suffer any changes, the new regulations shall be effective 14 days after their announcement in the Supplier´s on-line service. The revised terms and conditions shall apply to all legal transactions, unless the client expresses a written reasonable objection to the changes proposed by Supplier within the above-mentioned 14-day term. The range of products and indications concerning the product provided are subject to confirmation unless a written warranty is submitted. Supplier remains free to perform services in the course of technological advances. This includes employing new, and as the case may call for, different technologies, systems, methods or standards in the services offered, as long as this does not cause drawbacks to the client. The transfer of any rights and obligations of the license agreement requires written approval on the part of Supplier. When opening an account the end-user acknowledges that s/he understands the corresponding applications mentioned in the contract and is aware of the minimum age requirement for these applications. Any violation on the part of the end-user of the herewith referred-to conditions can lead to the immediate cessation of the services rendered. The cessation of services may be permanent.
Waiver on compensation for damages claims
The end-user waives the right to place any claims against Supplier for any damages caused by using, downloading or accessing any of the data or services offered by the Supplier. The end-user specifically waives the right to place claims for any malfunction of his/her computer (e.g. viruses, bugs, deletion of documents, unloading, defects, delays in operation or in transference, theft, destruction, unauthorized access or alteration of data) as well as violation or damage of any additional hardware or software in connection to the use of the on-line services or any of the services offered. The same applies to technical problems and malfunctions of on-line computer systems, servers, providers and computer accessories in connection with, or as a result of, the process of making use of the services.
No warranty or liability for third parties
Supplier assumes no warranty or liability for texts, images and/or any other contents offered by third parties which are accessible through Supplier´s on-line services (e.g. hyperlinks, e-mail, chat-rooms, sub-domains and forum contributions).
Limitation of liability for deliberate acts or negligence
According to the mandatory applicable above Supplier is liable only for reckless negligence and deliberately caused losses, damages etc. Liability for slight negligence is hereby not acknowledged. This is also applicable for actual fault and, as the case may be, institutional defaults or for vicarious liability. Liability for uncontrollable acts of nature is hereby not acknowledged. To the extent that Supplier is appropriately excluded from liability by the applicable provisions, this exclusion from liability is extendable to the personal liability of Supplier´s workers, employees, collaborators, representatives and auxiliary personnel. Supplier is not liable for simple negligence as long as the damage does not fall under its cardinal or its essential obligations. The main service liability within the scope of the service provider encompasses securing the execution normal operation under contract. Supplier assumes no liability for the arousal of any incidents causing damages within the scope of the current line provider, usually the Deutsche Telekom AG. Secondary obligations, which are in turn a necessary pre-requisite for the adequate execution of the contract must also be taken into account and are also included within the scope of the main obligations. Supplier does not acknowledge a right to compensation for continuous availability, as long as the system malfunction could not have been avoided despite a maximum diligence. Supplier disqualifies any further claims for any incidences of failure which may arise and are outside the sphere of Supplier´s responsibilities. Any further rights to compensation as a result of default or representing a (partial) - impracticality are limited to the typical damage claims. Furthermore, any liability claims for any service delays and/or malfunctions caused by uncontrollable acts of nature and/or unforeseeable, only temporary impairments and causes not traceable to Supplier, are hereby not acknowledged. Official regulations, strikes, lock-outs and lawful company internal industrial dispute measures are included within this range of impairments. Additionally, all total or partial malfunctions of the corresponding necessary communications and network structure service provider, as well as gateways and other service providers and operators are herewith included. The applicable compensatory payment in the form of reimbursement of prepaid charges pertaining to malfunctions caused by disruptions not within the provider's scope of responsibility will be disbursed only when the malfunction extends to more than a two full working-day time period. Liability arising from a failure of elements under warranty, consequences or consequential harm caused by a defect, as well as the liability deriving from the product liability obligation acts (§ 14 product liability act), are exempt from the aforementioned liability disqualification. We assume no responsibility for disruption and malfunction of the Internet itself, as we have no influence over such problems. The maximum amount of liability and compensation for damage claims is limited to the value of the contract. A special warning is hereby issued that no liability shall be assumed for the loss of data in our servers. Supplier shall not be held responsible for possible claims arising from unauthorized access (or similar issues) due to the loss of a password. Supplier assumes no liability for the loss of data stored in the Supplier computer systems. Supplier is under no obligation to create data backup copies. Neither does Supplier assume any liability for the dissemination of confidential data stored in the Supplier computer system. Supplier assumes no liability for the violation of the minimum age requirement measures of applications of any type. Supplier assumes no liability for contracts existing between the end-user and other partners or sponsors. Supplier does not screen its client's content to the effect of whether claims raised by third parties are justified or not. In this respect, it is widely accepted practice in the Internet realm that contents be blocked pending a judicial review on the credibility of the demands made by every third party. The client therefore agrees to block access to its content in cases where substantiated claims by third parties are raised.
Copyright-/trademark and fair competition protection
The images, text, audiovisual and all other contents offered by Supplier are protected by copyright, fair competition and trademark laws. Any duplication, dissemination, posting, publication, transfer, storage or copying into databanks or memory devices of any similar type, communication to the public or any other use of processed or unprocessed Supplier contents and all the services it provides on the part of end-users, other than for personal use, is therefore strictly forbidden without the previous written consent from Supplier.
Ban on illegal contributions
Introducing illegal written and/or image contents into the Supplier´s program on the part of the Supplier´s service end-users is strictly forbidden. This particularly refers to contents or other forms of expression which violate penal provisions or otherwise insult, threaten, are blasphemous towards a people, incite to crime, or are racist, obscene and pornographic. It is likewise forbidden for end-users to post material containing advertising for other products, especially programs offered by other service providers in the Supplier. The unauthorized use of copyrighted or third party trademark-protected material is also forbidden.
Services rendered
The supplier offers on-line data bank services and news services and web service. The basis of these services is the possible lease of on-line and services and web services on the Internet. These Supplier´s services shall be provided to the client with the greatest knowledge and conscience. Supplier guarantees a yearly average of 95% availability of its services. Warranty claims for services not performed as a result of technical failures originating in problems or reasons not caused by and/or which cannot be influenced by Supplier cannot be raised. In such cases Supplier makes the effort to re-establish unobstructed technical operations within the framework of its possibilities. Supplier withholds the right to make any necessary changes or expand its services in order to improve or facilitate its further technical development. Supplier obliges itself to make only those changes which fall within a reasonable framework for its clients and which take its own interests into account. Supplier guarantees the availability of its Internet server only for those clients who pay for its services. Binding delivery dates must be stipulated in writing. The agreed upon delivery term begins on the date the order is accepted. The deadline is met when the delivery item is available for use before the term expires. The delivery term is extended, where applicable, for the period of time until the purchaser gives us all the information and documentation necessary for the execution of the work order. The delivery time is extended for the necessary period of time within the framework of measures taken as a result of work stoppage, particularly strikes and lock-outs, as well as circumstances out of our control, such as legal or official regulations or in the case of delivery impediments due to uncontrollable acts of nature. The circumstances described above shall not be traced back to us even when they arise during an already-existing delay. We will inform the client as soon as possible of the outset and end of such impediments in the more serious cases.
Rescission and compensation for the non-execution of orders
Supplier shall withdraw from a contract when the stoppage of payments, the raising of bankruptcy or composition proceedings, the denegation of bankruptcy status lacking matter, draft or check reclamations, or any other ascertained indications of a deterioration in the economic situation of the purchaser of our services become known. I cases where Supplier withdraws from a contract because the order cannot be executed for reasons traceable to the client, the client must pay a compensation for Suppliers disbursement and losses equivalent to a fix fee of 50 Euros. Supplier reserves the right to verifiably demand higher compensation. The lump sum compensation may be reduced to the extent in which the client proves that the disbursement and/or the damages were not caused or were not caused for the amount of the setup compensation.
End-Customers right to withdrawal
According to German civil code §361a the client is entitled to the right of withdrawal if he is an end-customer according do German civil code § 13. The withdrawal term begins at the moment when the client gives clear and specific instructions about his/her right of withdrawal, which conform to requirements on the appointed means of communication which make his/her rights to the availability of stable data processing media clear. However, the term cannot begin before the day the client receives the product. The withdrawal term amounts to two weeks. The withdrawal does not require any grounds. The timely dispatch of the withdrawal to the Supplier address provided above is enough to ensure that the term is met.
Use of client data
In compliance with the federal data protection act, we have the right to handle all data within the scope of the business relations with the client. Supplier electronically stores all the client's data during the contractual relationship, as long as this is necessary to execute the intended purpose of the contract, particularly for accounting purposes. Supplier may also process and use the client and stock data for advertising and for internal market research purposes. Statistics and end-user data shall be disseminated in a solely anonymous way. End-user personal data, contents or information shall not be transferred to any third parties. Supplier obliges itself to protect all data, contents and information to the best of its ability. However, Supplier explicitly points out to its clients that data protection against data transmission in open networks, such as the Internet, cannot be comprehensively guaranteed in view of the current state of technology. Supplier does not allow for the use of the source codes it has created or any parts thereof, including graphics and symbols, as well as ideas and layouts without an explicit written consent. Supplier demands that its clients provide complete information about the stored database free of charge, in as much as it affects it.
Signing of the contract, duration of the contract and cancellation
The contract between Supplier and the client takes effect only when the client’s order is accepted by Supplier. The notification of the contract acceptance is sent to the client per e-mail and/or fax. The use of the Supplier´s services by underage clients is not allowed without the consent of his/her legal guardian. The signed written consent shall be sent to Supplier via fax or post. The transmission of the consent per e-mail shall not suffice. The contract shall be drawn for an initial one-month, three-month, six-month, twelve-month, twenty-four-month period (depending on the type of contract) for every individual server and, as the case may be, server group. The contract is extended tacitly for additional one-month periods respectively unless one of the parties cancels the contract in writing by the end of the initial and/or additional contract periods. The cancellation of the contract must be issued in writing at least two weeks prior to the end of the initial and/or additional contract periods. A transmission per e-mail shall not suffice. The right of both parties to cancel the contract on significant grounds, in accordance with the civil code, remains thereof intact.
Significant grounds in terms of the law constitute,
· when the end-user, in cases where a direct debit order is issued, closes the bank account to which the services are billed or cancels the direct debit order. · when the end-user is unable to pay and definitively refuses payment. · when the client violates the obligations listed in the general terms and conditions, particularly those in the contract, and a warning from the provider fails to induce any changes on the part of the client The provider reserves the right to temporarily discontinue its services due to delay in payment for the services provided or to discontinue the services definitively when the delay lasts more than 10 days. The end-user shall be informed of the imminent stoppage of services by means of a special reminder. The service provider is entitled to issue an extraordinary notice of cancellation in the case of a definitive refusal of payment. The cancellation must be issued in writing and may not be issued not via e-mail.
Compensation provisions
The prices quoted in the price lists include the current applicable sales taxes, which amount to 19%. The applicable prices for our services are those stated in the price list at the time the order is placed or accepted. The billing period is hereby determined to be for one month in advanced. A refund of already-paid charges in cases of premature cancellations is not possible. The invoice for the initial period of the contract shall be send per e-mail. Further invoices shall also be sent per e-mail. Supplier shall charge 2.05 Euro per invoice should the client request a special invoice to be sent per post. Payment shall be made to one of Supplier´s bank accounts within 5 days immediately after the invoice is issued, unless direct debit is issued. The payment is effective only at the point when Supplier can dispose of the amount due. Should a client, with residence outside of Germany, have more than one active contract and have one of these contracts due, all active contracts will be deactivated until the outstanding payment has been processed. Payment is due by virtue of having a server (e.g. even when it is temporarily deactivated) and does not depend on the availability of the server. Should direct debit billing be in place, Supplier has the right to debit the charge from the client's bank account, until cancellation by the client. To this end, the client shall provide all necessary information, particularly the bank details, when registering. Supplier has the right to charge the client (a flat rate of 30 Euros) for cancellation fees imposed as a result of the cancellation of the debit entry on the part of the client. The end-user automatically falls into statutory default 30 days after receiving the bill. From this point on, there shall be an outstanding payment request for a 5% interest of the corresponding valid base rate and the server shall be blocked. A 10 Euros charge for the issuance of every demanding letter is stipulated. Electronically-issued (per e-mail) requests for payment are hereby acknowledged by the client as binding. The client shall promptly notify us in writing of seizures or any other encroachments by third parties. We reserve the right to assert further damages claims. Only agreed-upon bills and checks shall be accepted. They shall be received as compliant and are valid only after their redemption as payment. We assume no liability for timely submittals. The buyer is entitled to retention rights in as much as counterclaims allude to the same contractual relationship. A summation of the buyer is not possible, unless, the objections raised by the client are legally ascertained or acknowledged by us.
Client obligations under the contract
The client is obligated to use the Supplier on-line services appropriately.
Accurateness of the data provided by the client
The client ensures Supplier that the all the information provided, particularly his/her name, address, telephone connections and bank account details are both correct and complete. The client is obligated to promptly send Supplier the current and correct data should there be any changes to this basic information. Any additional cases fall within the aforementioned changes, including the coming into inheritance and/or any other universal succession; as well as when a person is added or is withdrawn from the community of the client (business partnerships and community of heirs). Supplier reserves the right to end the contractual relationship, after warning the client in vain, should the client not meet these obligations.
Pledge of secrecy
The client is under the obligation to handle all passwords required and conveyed for the fulfillment and utilization of the contract in a strictly confidential manner. The client is hereby obliged to cover any additional costs and render any possible compensation arising from the use of a password by a third party. The client explicitly frees Supplier of any claims arising from the infringement of this obligation by third parties.
Clan server password obligations
The password may not be removed from servers with password protection. The full or partial password may not be contained in the server name. Should Supplier be able to prove that the server leaser has removed the password, this would constitute a violation of the general terms and conditions and, after a warning has been issued, the server rental contract shall be cancelled without further warning. No refunds shall be granted.
Additional end-user obligations
The lease-holder is especially barred from using the following services in connection with the use of the web space and services provided by Supplier: File Transfer Protocol (FTP) services or other services that exceed the normal volume of traffic. Pornography or erotic contents. Cell phone logos, ring tones, gambling, voting, or dating services, etc. Contents which are illegal, right wing extremist, obscene, threatening, insulting, defamatory or are scandalous. Contents that reveal private information about individuals without their consent. Contents which infringe upon trademarks, copyrights or other intellectual property rights. Contents which incite others to commit criminal acts. Activities that undermine the civil order or infringe upon local, national or international laws. Every Supplier´s client is obligated to remain informed of the most current terms and conditions. These can be accessed on the following Internet address: http://www.okvital.de, as well as per a request at any time. Objections to changes made to the terms and conditions which are not raised within 14 days, shall be interpreted as an acceptance. Registration, change, modification and cancellation of domains of an online presence Supplier fundamentally administers only non-binding information about the availability of a domain on the telephone or over the Internet. The DENIC or any other center may grant the domain to a third party during the time between when the information is given and the registration for the allocation is turned in; without Supplier gaining knowledge or having an influence. The registration of the domain will be carried out as a "de"-domain, unless something different has been agreed upon. The information provided for the registration will be forwarded to the DENIC or other respective centers in an automatic procedure without the assumption of any responsibility. The client can count on the actual allotment only once the Supplierhas made the corresponding Internet service available under the desired name. Supplier assumes no type of liability or guarantee for the allocation of a requested domain name, or for the allocation thereof during the interim, to a third party. Supplier serves all domains under the basis of the then-current guidelines of the appropriate registration center, particularly the DENIC regulations (visible under www.denic.de) for the duration of the contract entered into with the client. Supplier and the client are willing to change their contractual relationship should these guidelines suffer any changes or the general conditions for the registration and domain maintenance change for other reasons. Supplier files or carries out the registration of a domain in the name of and at the request of the client, and enters the client as the authorized user of the corresponding domain. For certain services, a single authorized user, who will have access, instead of the client, can be requested by the client per service. As is customary, Supplier will be entered as "tech-c". The client is aware that the name and address of the authorized users will be mandatorily stored in the DENIC as well as the RIPE databases and permanently stored in the so-called "whois" search engines on the Internet (e.g. on the www.denic.de), which may be viewed by he/she him/herself or by any third parties at any time. Supplier shall provide the necessary clearance without delay and without demanding special compensation should the client, or in some cases the other authorized user, want to continue using the domain through another provider after the conclusion of the contract, as long as all remuneration has been paid in accordance to the contract. The possibility of including an existing domain, which is being serviced by a different provider at the time, in the contractual relationship exists for certain services. The client is aware of the fact that clearance must be given by the provider who serviced the domain until that point, before a successful re-registration can take place. To this end, Supplier will make various attempts, up to a limited number of times, at performing a successful re-registration. However, Supplier cannot guarantee a successful re-registration in cases where third party providers fail to provide the necessary clearance. Even in cases of failure to provide clearance, the client must remunerate Supplier if payment has been previously agreed upon. A successfully re-registered domain shall be otherwise treated by Supplier and the client as a newly registered domain and be dealt with according to the pertinent regulations herein mentioned. Should Supplier cancel the contract on significant grounds, it is entitled to immediately cut off access to the Supplier´s Internet service and to end the maintenance of the assigned Internet addresses (domains) in respect to the respective registration center (e.g. the DENIC). Furthermore, in such cases Supplier has the right to immediately block access to all lodged contents and e-mail messages without issuing additional respite. The client agrees to provide the necessary explanations and to cooperate to the required degree in respect to changes of provider of a domain, as well as registration, modifications or deletion of a domain. The allocation guidelines mentioned above apply to all further domain types acquired by the client (e.g. .com, .at, .ch)
Provider rights
In addition, Supplier shall conduct spot checks of the website posted on the network by the client at irregular intervals and warn the client immediately should any reasonable suspicion about possible violations arise. Should requests for removal not be promptly obeyed, or rightfulness demonstrated/proven, the Supplier reserves the right to a preternatural cancellation of the contract. Supplier reserves the right to fundamentally block or, in individual cases, to prevent the operation of contents which may interfere with the normal performance of the server. Particularly in respect to CGI program modules, PHP4, and ASP which were not already contained in the program library. Supplier also reserves the right to block the client's services without previous warning should the client run programs of his/her own, within the framework of the service, which endanger the normal performance or security of the server. Supplier grants itself the right to thoroughly test every server during the course of the year. Hard and software changes may take place in connection with servicing when necessary. The server shall not be available during this time. The servicing work will be announced in the news. The client shall not be granted any reduction in lease costs as a result of servicing. The client agrees to allow Supplier to send information and advertising, within a reasonable scale, to the end-user's e-mail address as long as this option does not disable his/her personal profile. These e-mails shall be marked in an appropriate fashion with the purpose of differentiating them.
Miscellaneous
The client is hereby once more explicitly warned that Supplier may view all the client information stored in its servers at any time for technical reasons. The contract entered into by the client and Supplier is subject to German law by concurrent announcement of the provisions on the standardized United Nations Convention on Contracts for sale of transferable property. The use of the services under contract by third parties, as well as the transfer of these services to a third party in return for money requires the explicit written consent from Supplier. Should a resale be agreed upon, the resellers are obliged to transfer these binding terms and conditions to their contracting party and in this regard shall apply to Supplier without complaint or compensation. The client has, unless specifically agreed upon, no claim to an IP address, an actual physical server for his/her web contents of his/her own assigned wideband (a line with a capacity for the transfer of data). The company makes use of a high-capacity host system (server) with an IP address and a joint wideband for the respective server, through which fluctuations in the actual availability of the wideband for the client are possible, with the purpose of achieving necessary cost reductions.
Payment and legal venue, partial inoperativeness
The stipulated payment venue of all debt on both sides for services under the contract, including eventual claims to compensation, shall be our head office. In business dealings with suppliers that do not fall under the manufacturers referred to in § 4 HGB and with legal entities of the public law, the stipulated legal venue for all litigation arising from the contract, including claims on checks and on bills of exchange, is our head office; which also has the right to place claims in the client's venue. All remaining provisions remain in effect despite the nullification of specific provisions in the supply agreement or of these general terms and conditions. German laws apply to cross-border deliveries.
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