General Terms and Conditions and Terms of Use of DevKey Domainmanagement Solutions UG (haftungsbeschränkt)

Version of: 2011-09-01

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1. Object of Agreement

  1. 1. DevKey Domainmanagement Solutions UG – in the following DevKey – has developed an exclusive software product, the DNWorker, which enables the optimization and management of medium to large domain portfolios.
  2. 2. All services of DevKey are only provided on the basis of these Terms and Conditions, the information provided on the websites of DevKey, as well as the relevant separate software agreements.
  3. 3. Customer's Terms and Conditions are only accepted if DevKey has provided their explicit consent in written form.
  4. 4. The customer undertakes to read and save these Terms and Conditions, as well as the appendixes that are relevant to the agreement with the customer. DevKey will keep a current version of these Terms and Conditions available on their web pages.
  5. 5. The customer agrees receiving important notifications by e-mail from DevKey. The contact address entered in the customer account has to be checked and updated at a regular interval. DevKey is not responsible for customers not taking notice of messages sent to the e-mail address provided by the customer.
  6. 6. By ordering from DevKey and/or by initiating electronic actions the customer declares that he has the legal power to place orders directly himself or as the power of attorney of his organization and that he agrees to the complete registration agreement and terms of use.
  7. 7. In case of orders for or in the name of third parties, the customer shall be considered the only contract partner of DevKey. Our Terms and Conditions and contract terms shall also apply to the third party; the customer ensures that third party abides by the required code of conduct and duties and shall bind the third party to these conditions.
  8. 8. The customer assures that he is fully contractually capable.

2. Contract

  1. 1. The web pages of DevKey constitute an invitation for customer contract applications that is subject to change. A contract shall either be concluded through written or electronic confirmation of the application by DevKey or by first act of fulfillment of the order. Mere use of the website or confirmation of the receipt of an application shall not be considered to form a contractual relationship with DevKey.
  2. 2. The object of agreement as well as the scope and description of the services shall be defined by separate agreements.
  3. 3. The customer is obliged to verify the order confirmation from DevKey and to point out any possible errors or differences.
  4. 4. The object of the agreement shall be the exclusive and own use of the provided software during the term of the agreement. No development, adaption, decompiling, copying (unless necessary for contractual use), distribution, saving (except the loading of the software into the computer memory for own use) or other change of the software by the customer shall be allowed.
  5. 5. As the software is continually developed and improved, the customer agrees to all changes, extensions, improvements and temporary reductions in functionality by DevKey.

3. Domain Management

  1. 1. With DNWorker, DevKey is offering a system for the automated management and optimization of domain portfolios and content available under single domain names. The functions of the separate modules are detailed on the internet presence of DevKey and are continually expanded.
  2. 2. In the provision of interfaces to the various registrars as well as the management of domain names with these registrars, DevKey shall act only as mediator and has no influence on the registration, renewal processes for any requested or managed domains, or that such domain names are free of third party rights. The customer must have an active account and agreement with the respective registrars to this respect. DevKey has no responsibilities regarding informing the customer of changed registration policies of registries or registrars and has no obligation to guarantee successful registrations and/or the continued existence of any registered domain name.
  3. 3. In the provision of interfaces to the various service providers such as parking providers and marketplaces as well as the management of domain names with these service providers DevKey shall act only as mediator and cannot influence if the registered domain names will be implemented and managed in their systems or if the content provided by these providers is free of third party rights or leads to the violation of such rights by their use of the domain names. The customer must have an active account and agreement with the respective service providers for their service. DevKey has no responsibilities regarding informing the customer of changed terms of use of third-party providers and has no obligation to guarantee successful management and/or the continued existence of any registered domain name.
  4. 4. By use of the DNWorker Online Version customer grants DevKey the right to reserve a limited amount of advertisement space for their own or third party use in a traffic split. Such third party contents are not selected or monitored actively by DevKey and the domain owner and DNWorker maintain no relationship with third party advertisers beyond allowing the use of the spaces.
  5. 5. The customer explicitly ensures that the domain names managed in the DNWorker or their use does not violate third party rights, that the use does not violate legal or moral standards and no other legal or other hindrances exist against the use of the domain names, and that the registration and use follows the policies of the respective registries. DevKey has no obligation to monitor domain names for such violations. The customer further guarantees to be the legal owner of the domain names and to be legally entitled to use them in the intended manner.
  6. 6. The customer ensures that the intended use does not violate any laws or standards.
  7. 7. The customer maintains his legal position as owner of the domain names managed by DNWorker. The customer can deactivate used management functions for single or multiple domain names at any time. DevKey reserves the right to exclude any domain from the use with DNWorker if the domain is used in any way that conflicts or may conflict against any laws.
  8. 8. By entering a domain name in the DNWorker, the customer authorizes DevKey to make all updates necessary for the use of the software (such as DNS updates, whois updates or other domain configurations) in his name directly and in real-time with the appropriate registrar or service provider.

4. Liability and Force Majeure

  1. 1. As a condition of the customer’s access to the system and use of the services the customer agrees to defend, indemnify, save and hold harmless DevKey, its agents and partners as well as all persons involved in the management process in respect to all claims, demands, liabilities, costs and/or expenses resulting from an illegal use of a domain name registered by the customer or the content provided on a registered domain. The customer agrees to check each domain name before its use in the DNWorker and at regular intervals if the intended use violates third-party rights, such as trademarks, name rights and other rights, and that the use does not lead to violations of rights of competitors or unfair competition. In the event of a claim, customer has the right to prove that claims in the context of the exemption have not occurred in the demanded extent or not at all, and/or the customer is not responsible.
  2. 2. Neither DevKey, its agents and partners nor any person involved in the registration will be liable to the customer or any third party for any direct or indirect loss of profits, earnings or business opportunities, damages, expense, or costs resulting directly or indirectly from any failure to perform any obligation or provide service hereunder because of any Force Majeure, or governmental acts or directives, strikes, riot or civil commotion, war, any natural disaster, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar force or condition beyond the reasonable control of DevKey.
  3. 3. DevKey cannot be held liable for delays of services and server down times due to higher force, fault of third parties or due to events, which DevKey has no influence on, despite any agreed upon deadlines and dates. You hereby permit DevKey to interrupt the service and/or provision of services for the duration of the respective disruption plus an appropriate start up time. Furthermore DevKey can limit access to the service, if the stability and security of the operation, the maintenance of the net integrity, in particular the avoidance of serious disturbances of the network, the software or stored data requires it.
  4. 4. DevKey shall not be liable for data stored on their servers or in the DNWorker. The customer is responsible for the regular creation, the separate storage and restoration of backups.
  5. 5. Products and services of DevKey are provided without assuring any qualities whatsoever. We do not guarantee for the safety, freedom from errors or uninterrupted access to the software product or service. Oral statements of DevKey, its employees and licensors are not to be taken as assuring such qualities. The customer shall not hold DevKey to such statements or information.
  6. 6. For all services of DevKey the liability is limited to cases of intent and gross negligence. For paid services, liability is limited for cases of intent and gross negligence to the amount paid by the customer for the service or service period. In all other cases, liability is limited to an amount typically foreseeable at the time of the agreement, and shall only be applicable for major contractual obligations. The normal liability for damages resulting from damage to life, body or health of the customer shall not be affected.
  7. 7. In relation to third-party products integrated into the functionality of the software or service and marked as such, DevKey shall not be liable to damages caused by such products.
  8. 8. The customer shall indemnify DevKey against all damages caused by violations of the terms of use or these General Term and Conditions and against all claims brought by third parties due to the customer's use of the services. This shall also include an indemnification from all costs of a necessary legal defense where legal action against DevKey is threatened.
  9. 9. DevKey may disable access to a managed domain if the customer substantially violates the law with the content available under the domain and does not react to the request to remove the offending content.
  10. 10. The customer is obliged to keep confidential all passwords received from DevKey for access to the service and to inform DevKey immediately as soon as he gains knowledge that the password has become known by third parties without permission. The customer acknowledges and accepts that he shall be responsible for all actions executed under his access codes and that he bears the risks of unauthorized usage. Should the customer be responsible for the use of services by third parties due to his mishandling of access codes, the customer shall be liable to DevKey for all usage fees and damages. DevKey may disable the customer's access in cases of reasonable suspicion of unauthorized use of the access. DevKey will notify the customer immediately about such actions.
  11. 11. The customer may only make available his access to the DNWorker or transfer his rights from any contract with DevKey beyond his own use if explicitly and previously permitted in writing by DevKey.
  12. 12. In cases of permitted third-party access to services or resale of products or services the customer is fully liable for all damages caused by violations of the contract or terms of service by the third party, and will indemnify DevKey from all claims.

5. Duration of Contracts and Termination

  1. 1. The Hosted Version has a minimum contractual term of service of 24 months. The term of service is automatically extended by 12 months unless the contract is terminated in writing by fax at least three months prior to the last day of the month in which the term of service expires.
  2. 2. Use of the Dedicated Version is not limited in duration.
  3. 3. Use of services beyond their agreed contractual terms of service is not permitted.

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  5. 4. Apart from the above regulations both parties have the right to terminate the contract for important reasons. Amongst the important reasons of DevKey are cases where the customer:
    • • is in default with payments for one month's fees or more for contracts with a minimum term of service or an explicit term of service,
    • • is in default with payments for fees more than 20 calendar days for contracts with an unlimited term of service,
    • • violates against the rights and obligations of these Terms and Conditions, the terms of use or the service contract in a fundamental way,
    • • obviously violates the law by the content of managed domains.
  6. In these cases the customer loses all rights.
  7. 5. The customer will be advised of required payments in time before any extension. In the case of non payment at least seven (7) days prior to the expiration date, the customer will lose all rights to the service. If the customer did not terminate the contract on time, and the customer has identified his payment method to be either credit card or bank debit, and entered current and valid payment details, then we will automatically charge the due amount ten (10) days prior to the expiration date and the contract will be renewed accordingly.
  8. 6. No refunds are possible in case of premature termination of services unless the termination was caused by a deliberate action or gross negligence of DevKey. This also applies for other requested services or additional options.
  9. 7. The customer agrees to independently backup contents entered into the Hosted and/or Online Version of the DNWorker, and further agrees that DevKey may delete such content at any time after the termination of the agreement.
  10. 8. Notices of Termination or of withdrawal are valid in writing only, which shall be possible by fax message as well.
  11. 9. All rights of nullification or return for contracts of remote sales (§ 312d BGB) are excluded for contracts for services that are opened for the customers use immediately after the receipt of the order at the request of the customer.

6. Data and Data protection

  1. 1. The customer is committed to supply DevKey with the following information and data. The customer assures that all submitted data and information is correct and complete. Incorrect and outdated data must be updated. By changing the data in the customer-online-interface, the customer furthermore assures that these modifications are correct, complete and truthful. The customer acknowledges that the submission of incorrect data may lead to cancellation of all rights to use the services or to access his account. In such cases, no refunds are possible. This also applies if the customer does not respond to requests by DevKey to update his data within a reasonable time. This especially applies to current and complete data on name and surname or name of the legal entity, postal address, e-mail address as well as telephone and – if applicable – fax number.
  2. 2. With respect to article 33 of the German Law on the Protection of Personal Data DevKey hereby informs its customers that in the process of the execution of the agreement personal data is stored and processed and that personal data may be transferred to third parties involved in the fulfillment process. No personal data is passed on beyond that required for the fulfillment of all contractual or legal obligations.
  3. 3. DevKey is authorized to use the data for improvement of its services and to even better adapt its services to the needs of the customers.
  4. 4. DevKey may permanently save all data required for billing of services.
  5. 5. The customer has the right to request information on the storage of his personal data free of charge.
  6. 6. The customer agrees to receive informational and marketing e-mails directly from DevKey.

7. Pricing

  1. 1. The prices for services of DevKey are published without engagement on its website; these prices can be changed at any point in time.
  2. 2. For all new contracts or renewals only the actual prices and taxes on the day of the transaction are applicable.

8. Payment

  1. 1. Payment can be made by credit card (VISA, Mastercard, AMEX), Eurocard, wire transfer, by Paypal or by sending a check drawn to a German bank.
  2. 2. Usage based fees are due at the time when they are billed, other fees are due in advance. The time of receipt of the fees by DevKey on their accounts shall be considered the payment date. All bank fees shall be paid by the customer. The customer shall only have a right to fulfillment when all fees are paid in full.
  3. 3. The customer agrees to lose all rights to services if payments are not received in time or are reclaimed by the bank, credit-card company or other fulfillment agent, as well as in cases of credit card fraud and other returns of payments. DevKey will deactivate all services in such cases.
  4. 4. In case the customer requests an invoice by mail, DevKey may charge EUR 3,- per mailing for this service.
  5. 5. In case of premature termination of services, neither full nor partial refunds may be claimed by customer.
  6. 6. Payments for services are also not refundable in case of disruptions in the service due to Force Majeure or other causes outside the realm of responsibilities of DevKey.
  7. 7. If a bank debit is denied by customer, denied by the bank due to insufficient funds, or a refund is effected in another way, the customer is liable for the bank costs, currently EUR 3,-, plus an additional processing fee of EUR 8,- per failed bank debit.
  8. 8. The customer can only offset his own claims against claims of DevKey if these claims have been accepted in writing by DevKey.
  9. 9. In case of default on payments, DevKey may charge an annual interest of 9% above the current basis interest rate according to § 247 BGB, or if the customer is a consumer, an annual interest rate of 5% above the current basis interest rate.

9. Special Obligations

  1. 1. The customer shall identify the contents of the domains managed in the DNWorker as his own by giving his full name and address. The customer is advised of possible further identification requirements if the content includes teleservices or media-services.
  2. 2. The customer may not offend legal prohibitions, the morals and the rights of third parties (brand rights, name/author's rights, data protection laws etc.), or support such violations actively by means of the internet presence published through the DNWorker, by placing banners on the website, by the designation of his e-mail address and the contents of his operational website. In particular the customer is committed not to publish pornographic or erotic content and no services directed towards realization of profits, that are related to pornographic or erotic contents (e.g. nude pictures, peep shows etc.). Similarly, the offering of viruses, of content that glorifies violence, that incites people, racist or right wing extremist content, incitements towards criminal activity as well as content directed at debasing the human dignity of others (hate pages) is prohibited. The customer is not allowed to enter his website in search engines as long as the customer uses key-words which could violate legal prohibitions, the morals and rights of third parties. For each violation, the customer will be held liable for all damages resulting from violations of the above obligations, and agrees that access to any offending content may be blocked or the content deleted. DevKey shall inform customer of any such blocking or deletion.
  3. 3. The customer shall regularly and independently check the contents and advertisements employed by himself or third parties and shall therefore be liable for those contents. DevKey shall assume no liability for corresponding content, such as banner ads or links. The customer agrees that he is the sole party responsible for the content published on his web site and agrees to defend, indemnify, save and hold DevKey harmless in respect to all claims, demands, liabilities, costs and/or expenses resulting from a violation of the obligations above, including all direct and indirect damages as well as economic losses. This clause shall survive the termination of the agreement.
  4. 4. DevKey is not committed to check the the contents of the customers websites or internet presences for violations. Published contents are considered foreign contents for DevKey as per § 8 Telemediengesetz. After recognizing legal offenses or excluded contents DevKey maintains the right to partially or totally block access to the web presence. This also applies to plausible claims brought by third parties. DevKey will immediately inform the customer of such actions and claims. If possible, the blocking shall be limited to the offending content and shall be lifted once the customer can plausibly prove the legitimacy of the content or removes the offending content.
  5. 5. All servers of DevKey are usually active 24x7. This does not include interruptions due to previously announced maintenance. However, DevKey cannot guarantee uninterrupted services. DevKey cannot be held liable for loss of data, interrupted data transmission and any other problems which may occur due to technical breakdowns, disturbances in the technical infrastructure of the internet, hacking, strikes and other technical problems outside the realm of responsibility of DevKey and its assignees. The customer shall report any interruptions of service to DevKey in order to allow DevKey to start repairing them at once.

10. Final Clauses

  1. 1. Modifications to the Terms and Conditions or the contract, as well as cancellations will only be accepted in writing, including e-mail transmission, oral agreements shall not be considered valid.
  2. 2. For commercial customers and legal entities in Germany, as well as for all customers without permanent residence in Germany, St. Ingbert/Germany will be the exclusive place of jurisdiction, as well as the place of fulfillment.
  3. 3. For the contract between DevKey and its customers the German law is the only effective law. UN trade law shall not be applicable.
  4. 4. If any provision of these Terms and Conditions shall be unenforceable and/or invalid, such unenforceability and/or invalidity shall not render these Terms and Cnditions unenforceable or invalid as a whole. Any provision determined to be unenforceable or invalid shall be replaced by provisions which are valid and enforceable and closest to the original objectives and intents of the original provisions in an economic and legal sense that would have been agreed upon by the parties, had they known of the invalidity at the time of the agreement.
  5. 5. The English and German version of these Terms and Conditions are both valid. In case of doubt, the German version will be decisive.