Terms and conditions
General Terms and Conditions of NTT Europe Online GmbH
1. Scope
The contractual relationships between NTT Europe Online GmbH with seat in Neutraubling and its customers are subject to the present General Terms and Conditions (GTCs). These GTCs form the basis for all deliveries of goods and provisions of services by NTT EUROPE ONLINE to its customers. Contractual relationships in connection with deliveries of goods and provisions of services by NTT EUROPE ONLINE established between its customers and third party providers are also subject to the terms and conditions of such third party providers. In particular, domain registration contracts are subject to the terms and conditions of the respective Network Information Centre (NIC). Furthermore, terms and conditions of foreign third party providers shall also apply in case the customer enters into a contractual relationship with such foreign third party provider. Should the customer's GTCs deviate from or conflict with the present GTCs of NTT Europe Online GmbH, they shall not apply unless NTT EUROPE ONLINE expressly agrees to their applicability in writing. The validity of the present GTCs is also not excluded in case NTT EUROPE ONLINE, fully aware of conflicting or deviating GTCs of the customer, delivers the goods or renders the services without any reservation.
2. Applicability of foreign law
In case the parties agree on a subject matter of the contract with a connection to a third country, the customer shall have the obligation to also comply with the legal provisions of such third country. A connection to a third country is particularly the case if the server location for web hosting is outside of the Federal Republic of Germany or if a customer uses a software for its website for the licensing of which it agreed on the applicability of the law of such third country with the licensor.
3. Conclusion of contracts
A contract with NTT EUROPE ONLINE shall be concluded by implication if NTT EUROPE ONLINE performs upon a customer's request. References to deliveries of goods and provisions of services by NTT EUROPE ONLINE must be deemed to be a request for a proposal and shall be without commitment. Prices shall be subject to modification upon material reasons shown, such as increases in fees by the NIC. Should such modifications materially impact the customer's cost estimation, it shall have the right to rescind or terminate the contract. It must assert such right no later than four weeks after receipt of the notification of modification.
4. Domain registration and IP addresses
4.1 The registration of the domain name results in a direct business connection between the customer and the respective NIC. The customer is the sole contractual partner of the NIC with regard to the registration contract. Upon the customer's request, NTT EUROPE ONLINE can act as an agent and submit the customer's registration request. In such a case, the customer shall bear the risk of proper and timely submission of the request.
4.2 The customer shall not have any rights to the IP addresses allocated to it by NTT EUROPE ONLINE. NTT EUROPE ONLINE shall reserve the right to exchange, modify or remove all or any IP addresses upon notifying the customer in writing thereof. NTT EUROPE ONLINE shall not be liable for any expense incurred to the customer therefrom, if the measures were taken for good cause.
5. Password
The customer shall receive a user ID and a password so it can access its data material. The customer is to immediately change the password it received in order to guarantee the security of its data material.
6. Material contractual obligations
6.1 The customer has the obligation of not making available politically extremist, religiously fanatic contents and contents not corresponding to the free democratic basis order.
6.2 Above all, the customer has the obligation to comply with penal and supplementary penal provisions as well as with copyright, trademark or competition law provisions and private law provisions.
6.3 The customer shall have the obligation of not making available child or violence-related pornography contents.
6.4 Concerning subject matters of the contract subject to a restriction in terms of data transfer or disk space volume, the customer shall have the obligation to pay the costs occurred due to its exceeding the volume according to a corresponding invoice.
6.5 The customer shall have the obligation to treat the login details, i.e. user ID and password, confidentially.
7. Consequences of a violation of a material obligation
Should the customer violate one of the obligations stated in numbers 6.1 to 6.5, it shall have the obligation to refrain from continuing such violation, to reimburse NTT EUROPE ONLINE for any damage occurred and to indemnify and hold harmless NTT EUROPE ONLINE from third party claims for damages or for reimbursement of expenses caused by such violation. This shall also include any costs for bringing on action. Any other rights of NTT EUROPE ONLINE; including those to blocking the contents or to an extraordinary termination, shall remain unaffected thereby.
8. Execution of contract
8.1 NTT EUROPE ONLINE guarantees availability of the web servers of 99 % per year, unless NTT EUROPE ONLINE and the customer expressly agreed in writing on another provision concerning availability. 1 % of the operation time per month can be used for maintenance work. NTT EUROPE ONLINE shall not assume any liability for technical or other malfunctions beyond its control, such as malfunctions in the internet infrastructure caused by national or international network operators or malfunctions caused by the customer.
8.2 For services such as Dedicated Server or Modular Hosting Solutions, NTT EUROPE ONLINE will initially configure the hardware and software for the services. NTT EUROPE ONLINE shall not provide any maintenance or support services for hardware and/or software to the customer exceeding those stated in the services order form. Maintenance and support services do not include any services for malfunctions caused by (a) corruption, modification, change or addition to the hardware or software by other persons than NTT EUROPE ONLINE or their authorised representatives or (b) the customer's hardware or software.
8.3 The customer shall make backup copies of the data material it transmits to NTT EUROPE ONLINE.
9. Protection of intangible property
9.1 Each of the parties shall observe the rights of the respective other party to its intangible property and shall agree not to violate them. Unless expressly otherwise agreed upon in writing, neither party shall have any right to claim the intangible property of the respective other party. Except to the extent required for the agreed upon execution of the contract, neither party may copy, modify, translate, decompile, disassemble or reengineer any items of the intangible property rights of the respective other party or associated documentation or use the intangible property rights of the respective other party other than in connection with the services in accordance with the agreed contracts or grant such rights to third parties.
9.2 The customer shall recognize that NTT EUROPE ONLINE and/or licensors of NTT EUROPE ONLINE are entitled to all rights to the technology, including services, the software forming part of the services or delivered with them, and any brands. Unless otherwise expressly agreed upon in writing between the parties, the customer shall only be authorised to use NTT EUROPE ONLINE's intangible property or to authorise third parties to do so upon NTT EUROPE ONLINE's prior written consent, unless the customer were to be excluded from using NTT EUROPE ONLINE's intangible property to the extent it (i) is integrated in the services and (ii) is required so that the customer is able to use the full functionality of the agreed upon services.
10. Confidential information
10.1 Each of the parties shall commit the respective other party to complete confidentiality, including all employees and other third parties involved in the contract with access to information belonging to the respective other party and/or the contractual performance concerning such information toward third parties not involved and to unconditional protection of such confidentiality.
10.2 The use of information by one of the parties that (a) is or becomes publicly known or available due to legal means; (b) has been disclosed to the receiving party without confidentiality or protection restrictions by a third party, who legally possesses and discloses such information; (c) is developed by the receiving party independently, not in violation of this contract; (d) is the subject matter of a written authorisation of disclosure supplied by the disclosing party; or (e) must be disclosed in accordance with a law, a court order or a request by government or supervisory authorities, is not prohibited or restricted by these GTCs. The party invoking such exception shall bear the burden of proof.
11. Customer contents and data transfer
11.1 The customer shall be solely responsible for the contents on the disk space used by it ("Customer Contents") and agrees that it shall be responsible for backup and recovery of such Customer Contents, unless otherwise expressly agreed upon in writing with NTT EUROPE ONLINE.
11.2 The customer agrees that the contents provided by it do not violate any patent rights, copyrights or any other property rights of third parties.
11.3 The customer is aware of the fact that as a rule, unencrypted electronic communication is not confidential. Therefore, it shall assume the risk of unauthorised access by third parties when using this form of communication.
11.4 Personal data and Customer Contents shall only be saved on NTT EUROPE ONLINE's servers within the European Union, unless otherwise agreed upon in writing between the customer and NTT EUROPE ONLINE.
11.5 The customer shall have the sole responsibility for the development, the operation and the maintenance of the website and for the Customer Contents, including the online and offline operation of its products and services.
12. Intermediate storage
The customer shall expressly grant NTT EUROPE ONLINE the right to temporarily store the entire website of the customer including the Customer Contents for proper execution of the contract by NTT EUROPE ONLINE.
13. Obligation to pay, method of payment
13.1 All goods and services shall be invoiced in EUR in accordance with the price lists valid at the time unless NTT EUROPE ONLINE and the customer expressly agreed on different fees for the services, on other fees or currencies in writing in the services order form. For the avoidance of doubt, all prices or fees stated are net, plus the applicable statutory VAT. The invoices for all customers whose monthly net invoice amount is below EUR 100.00 shall be issued on a quarterly basis in advance, unless NTT EUROPE ONLINE and the customer expressly agreed otherwise in writing.
13.2 In case NTT EUROPE ONLINE assumed the task of submitting a registration request for the customer for a domain name under the top-level domain (TLD) ".de" upon the customer's request, the customer's obligation to pay vis-à-vis DeNIC eG with seat in Frankfurt am Main shall be suspended for as long as NTT EUROPE ONLINE duly pays DeNIC eG's fees. Such proper payment shall depend on a corresponding proper payment from the customer to NTT EUROPE ONLINE. Should payment of DeNIC eG's fees be delayed due to a delay in payment by the customer to NTT EUROPE ONLINE, NTT EUROPE ONLINE shall be entitled to stop payment for a domain upon a notice period of seven days. The customer's obligation to pay vis-à-vis DeNIC eG shall take effect again. The payment shall be made via direct debit. In case other payment methods are used, lump-sum expenses amounting to EUR 7.70 per accounting process shall be invoiced due to the increased expenses and effort, unless the customer can prove lower expenses. This handling fee shall also be invoiced in case the customer's invoices must be issued for a different method of settlement due to a return debit. The acceptance of cheques shall be effected on account of performance.
13.3 NTT EUROPE ONLINE's invoices shall be due and payable 10 days after the date of issue of such invoice. The customer must refund all expenses incurred due to a direct debit not honoured or returned, unless the customer can prove that it adhered to due diligence provisions or that the damage would have occurred despite such due diligence. The customer must audit the invoices regularly and, should there be any objections to the amount of the usage-dependent fees invoiced, such objections must be sent in writing to NTT EUROPE ONLINE immediately, however, no later than four weeks after receipt of the invoice.
13.4 The fees fixed in the services order form shall be guaranteed during the minimum contract term. In case the customer continues to receive the services after the minimum contract term without concluding a new contract or renewing the contract, the fees invoiced after the minimum contract term shall be calculated in accordance with the applicable prices according to the price list of NTT EUROPE ONLINE determined every month for such services without discount.
14. Blocking
14.1 Upon prior notification and setting a period of time, NTT EUROPE ONLINE is entitled to refuse the customer access to its data material (blocking), in case such period of time elapses unsuccessfully. In case of blocking, the customer does not have access to internet services via its account with NTT EUROPE ONLINE, depending on the subject matter of the contract. In case a Dedicated Server or Modular Hosting Solutions form the subject matter of the contract, those are shut down. During the time of blocking, users have no access to the customer's information offered. A reminder can be linked to the notification that blocking will be effected. During the time of blocking, the customer still has the obligation to pay the remuneration, as the customer's data material is still kept by NTT EUROPE ONLINE. In case of imminent danger, a prior notification is not necessary.
14.2 Reasons for blocking may include but are not limited to:
14.2.1 a violation of the obligations according to numbers 6.1 to 6.3 or
14.2.2 late payment of an invoice, or
14.2.3 the suspicion of illegality of the contents of the customer's data material or the allegation of a violation of third party rights, after the customer was informed thereof, or
14.2.4 the improper use of the infrastructure. Improper use is particularly the case if the customer
14.2.4.1 sends unsolicited electronic commercial communication (spam mails), or
14.2.4.2 sends unsolicited electronic communication in the form of bulk mails not for promotion purposes (junk mail), or
14.2.4.3 within the framework of the respective contract, uses software such as scripts that have or may have an impact on the operating performance of the infrastructure.
14.3 The blocking shall be maintained in order to avoid any liability of NTT EUROPE ONLINE until the customer shows or, if applicable, proves the lawfulness of the contents. The same shall apply to any investigation by the public prosecutor's office. Blocking shall only be excluded in case of obviously unfounded warnings by third parties.
14.4 Deletion of the customer's data material
In case the customer remains in default with a due payment also during the time of blocking, NTT EUROPE ONLINE is entitled, without prior notification, to delete the customer's data material and to use the subject matter of the contract now available.
15. Termination of the contract
Terminations must be in writing. Terminations for convenience and extraordinary terminations shall not have any effect on the domain registration contract.
15.1 Termination for convenience
A contract for an unlimited period of time can be terminated by either party without observance of a special notice period as of the end of the following month. The contractual relationship can be terminated at the time of expiration of the minimum contract term for the first time. The respective other contractual party must receive the written termination no later than 60 days before the expiration of the minimum contract term. In case the contractual relationship is not terminated by either contractual party, the contractual relationship shall be extended automatically by a period corresponding to the minimum contract term. The termination of the subsequent contract terms shall be analogously subject to the provision in section 2.
15.2 Extraordinary termination
Each of the parties shall be entitled to terminate the contract for good cause without observing a notice period. Good causes shall include but not be limited to the following events:
15.2.1 the respective other party (a) becomes insolvent, or (b) executes an assignment in violation of number 20,
15.2.2 the customer culpably violated the obligations according to numbers 6.1, 6.2 or 6.3, or
15.2.3 the customer is in default with the payment of the remuneration or of a material part thereof on two consecutive due dates or is in default with the remuneration amounting to an amount corresponding to the remuneration for two months for a period of time that extends beyond two consecutive due dates and such delay is attributable to the customer.
16. Liability
Any liability for initial defects of an item placed at the customer's disposal by NTT EUROPE ONLINE shall be excluded. Any liability for the allocation of a domain name shall be excluded. NTT EUROPE ONLINE shall have unlimited liability for any damage caused by NTT EUROPE ONLINE or its vicarious agents with wilful intent or gross negligence. In case of a violation of contractual obligations that are indispensable for the fulfilment of the purpose of the contract (cardinal obligations), NTT EUROPE ONLINE shall also be liable for slight negligence. In the latter case, liability shall be restricted to damage typical for such contract.
The customer's or its vicarious agent's contributory fault shall be the customer's liability.
The liability based on guarantee, fraudulent intent and non-transferable legal interest shall remain unaffected thereby.
By granting rights of use, no warranty shall be assumed for the non-violation of third party property rights or copyrights or the non-occurrence of third party damage. This shall not apply in those cases in which NTT EUROPE ONLINE is aware of conflicting third party rights or damage or is not aware of them due to gross negligence. NTT EUROPE ONLINE and the customer shall inform each other of any claims asserted. This shall be the final regulation concerning NTT EUROPE ONLINE's and the customer's rights and obligations with regard to the violation of industrial property rights and copyrights.
17. Warranty
NTT EUROPE ONLINE shall provide its goods and services in accordance with the state-of-the-art science and technology applicable at the time, taking into consideration the relevant de facto standard applicable at the time, unless the parties agreed otherwise in writing. NTT EUROPE ONLINE is also certified in accordance with ISO/IEC 27001:2005.
18. Force majeure
NTT EUROPE ONLINE shall not be liable for default or delay in the fulfilment of its contractual obligations, if such default or delay is caused by circumstances beyond its reasonable control, including but not limited to acts by governmental authorities, war, civil commotion, sabotage, embargo, fire, flood, strike and interruption of work.
19. Modifications or waiver
Modifications or amendments to the agreements between NTT EUROPE ONLINE and the customer must be in writing. The same shall apply to any modification to the requirement of written form.
20. Assignment
The customer may only transfer the rights and obligations in accordance with this contractual relationship to third parties with NTT EUROPE ONLINE's prior written consent.
21. Communication
For the avoidance of doubt, all communications to the customer shall be sent to the invoice address stated on the signature page of this contract.
22. Modification to the GTCs
NTT EUROPE ONLINE is entitled at all times to modify or amend these GTCs. Should the customer not object to such modified terms and conditions within a period of four weeks upon receipt of the notification of modification, the new GTCs shall become effective for existing contractual relationships as well, according to such notification. Should the customer object to the new terms and conditions within the set period of time, NTT EUROPE ONLINE shall have the right to terminate the contract as of the time the modified terms and conditions are to take effect.
23. Place of performance
The place of performance for all deliveries of goods and provisions of services by NTT Europe Online GmbH shall be Frankfurt am Main.
24. Exclusive place of jurisdiction
Frankfurt am Main shall be the exclusive place of jurisdiction for any claims in connection with or based on the contractual relationship between NTT EUROPE ONLINE and the customer, including actions on cheques or bills of exchange, as well as any disputes arising between the parties concerning the conclusion, the execution or the termination of the contract, providing the customer is a merchant, a public law entity or a special fund under public law.
Version of 18 December 2006
