General Terms and Conditions

Section I - General rules
 
§ 1 Validity, amendment of the conditions
(1)     ESONO AG, Grünwälderstraße 10-14, 79098 Freiburg (hereinafter referred to as ESONO) provides its services exclusively on the basis of these terms and conditions. If the customer is a merchant within the meaning of the German Commercial Code, they also apply to all future business relations, even if they are not expressly agreed again.
 
(2)     Deviations from these terms and conditions are only effective if ESONO confirms them in writing. The waiver of this written form clause must also be in writing.
 
(3)     ESONO is entitled to amend or supplement these General Terms and Conditions at any time. The customer has the right to object to such a change. If the customer does not object to the changed conditions within 4 weeks after receipt of the notification of change, they shall take effect in accordance with the announcement. ESONO informs its customers in writing or via e-mail at the beginning of the period that the notification of change is considered accepted if the customer does not object to it within 4 weeks.
 
(4)     The complete text of the terms and conditions will be published by ESONO via a link on the Internet and made available there for viewing and downloading (https://www.esono.de/en/General-Terms-and-Conditions/).
 
(5)     The provision of complete and correct data is a prerequisite for the conclusion of the contract.
 
(6)     Für bestimmte Vertragsbeziehungen gelten zusätzlich gesonderte Bestimmungen, die dem jeweiligen Vertragspartner zur Wirksamkeit jedoch gesondert bekannt gegeben werden müssen.
 
(7)     Separate provisions apply additionally to certain contractual relationships, which must, however, be separately notified to the respective contractual partner in order to become effective.
 
 
 § 2 Formation and termination of the contract
1)     Unless otherwise agreed, the contract is concluded for a term of 12 months.
If the contract is concluded for a certain period or if a minimum contract term has been agreed with the customer, the contract shall be extended by the agreed period or minimum term in each case, but by a maximum of one year if it is not terminated with four weeks' notice to the respective expiry of the specific period or expiry of the minimum contract term.
ESONO is entitled to terminate the contract with a notice period of four weeks to the end of the month for contracts that have a term or a minimum contract term of up to twelve months. This also applies if the contract has been extended for a certain period of time.
A contractual relationship running indefinitely can be terminated by both parties without giving reasons with a notice period of 30 days to the end of the month.
 
(2)     The offers of ESONO are always without engagement. Contracts are only concluded with the written confirmation of the customer's order.
 
(3)     Only the written text becomes part of the contract. Verbal agreements must be made in writing to be effective. Both parties irrevocably waive the oral waiver of the written form requirement by acknowledging these GTC.
 
(4)     Notices of termination must be in writing, whereby a transmission by fax is sufficient to maintain this form.
 
(5)     This does not affect the right of both parties to terminate the contract for good cause. An important reason exists for ESONO in particular if the customer is in arrears with the payment of the fees with an amount of two monthly basic fees.
 
 
§ 3 Prices and payment
 (1)     Unless otherwise stated in the order confirmation, the prices for the provision of services or delivery of goods from the place of performance Freiburg, excluding packaging, insurance or other ancillary services and including statutory value-added tax, shall apply. In dealings with companies, the prices do not include the statutory value-added tax.
 
(2)     Prices may be changed by ESONO at the beginning of a new contract term with a reasonable notice period of at least one month. If the price increase is significantly higher than the increase in the general cost of living, the customer has an extraordinary right of termination for the time the new prices take effect. If the customer does not exercise the right of termination within 4 weeks, the contract will be continued with the new conditions. ESONO will point out this legal consequence in the notification.

(3)     If the customer is in default of payment, ESONO can block the corresponding service. This shall not result in the customer's obligation to pay fees ceasing to apply.

(4)     In the event of default, ESONO is entitled to charge interest at a rate of 6% p.a. above the base interest rate applicable at the time and to immediately block or omit the services provided for in the contract.

(5)     ESONO can make the unblocking dependent on the payment of a processing fee of 20,- € in case of a justified blockage due to default of payment.

(6)     ESONO can claim processing fees of 10,- € for unauthorized return debits.

(7)     The customer can only set off claims of ESONO with unchallenged or legally established claims. The same applies to the assertion of a right of retention and the plea according to § 639 para. 1 BGB and § 478 para. 1 BGB.

(8)     The buyer can only exercise a right of retention if his counterclaim is based on the same contractual relationship.

(9)     Payments are generally due upon performance or on the date explicitly stated in the order confirmation.

(10)  The service to the customer remains the property of ESONO until full payment of all claims resulting from the contract against the customer. The customer may not dispose of the service during this time, in particular not encumber it with the rights of others. Should third parties wish to access the service, the customer undertakes to point out the property of ESONO and to inform ESONO immediately. The customer shall bear all costs arising from a breach of these obligations.

(11)  In dealings with entrepreneurs, the retention of title also extends to the recognised balance (current account retention of title). In addition, the goods must be insured by the buyer against all common risks for the duration of the retention of title. The rights arising from these insurances are assigned to ESONO. ESONO accepts this assignment without further declaration of intent.
 
 
§ 4 Obligations of ESONO
(1)     If ESONO provides additional services free of charge (e.g. spam filter software), the customer has no claim to performance. ESONO is entitled to discontinue such services previously made available free of charge at any time without informing the customer.
 
(2)     Unless expressly agreed in writing with the customer, ESONO does not provide the customer with free technical support. ESONO does not provide any direct support for customers of the customer (reseller), unless otherwise agreed in writing.
 
(3)     Unless expressly agreed otherwise, ESONO may also have the services incumbent upon it rendered by expert employees or third parties.
 
 
§ 5 Duties of the customer
(1)     The customer assures ESONO that all data that the customer transmits to ESONO are complete and correct. The customer undertakes to immediately transmit any changes to his data to ESONO. This obligation applies in particular to his address data including the telephone number, the bank details (in the case of "direct debit") and the e-mail address.
 
 
§ 6 Warranty and liability
(1)     In dealings with entrepreneurs, claims for defects in the goods or services expire after 12 months.
 
(2)     Excluded from the warranty:

(a) Claims of the customer arising, directly or indirectly, from improper modifications or repair work on the part of the customer on the goods/performance.

(b) Claims for damages in lieu of performance and the customer's right of withdrawal in the event of only a minor deviation from the agreed quality of the goods.
 
(3)     ESONO is only liable for damages in the form of contractual and non-contractual claims if ESONO or one of its vicarious agents has violated an essential contractual obligation (cardinal obligation) in a manner endangering the purpose of the contract or the damage is attributable to intent or gross negligence. ESONO shall also be liable in accordance with the provisions of the Product Liability Act.
 
(4)     In case of gross negligence ESONO is liable according to the legal regulations, in case of pecuniary loss however at most in the amount of the maximum rates laid down in § 7 paragraph (2) TKV (at present EUR 12,782.30).
 
(5)     In case of slight negligence ESONO is only liable if it has violated an essential contractual obligation. In these cases ESONO is liable only in the amount of the foreseeable, contract-typical damage, in the case of financial losses, however, at most in the amount of the maximum rates laid down in § 7 paragraph (2) TKV (at present EUR 12,782.30).
 
(6)     Liability for all other damages, in particular consequential damages, indirect damages or loss of profit, is excluded.
 
(7)     Claims for damages become statute-barred after a period of one year from knowledge of the event causing the damage, unless it is a case of intentional damage.
 
(8)     ESONO collects and processes data. This is done within the framework of the statutory data protection laws and regulations.
 
(9)     The liability of ESONO due to warranted characteristics, personal injury as well as due to mandatory legal regulations remains unaffected.
 
(10)  ESONO points out to the customer that absolutely secure data protection in an open network such as the Internet cannot be guaranteed according to the current state of the art. The customer knows that ESONO can view the pages stored on the web server and possibly also other data of the customer stored there from a technical point of view at any time. Other Internet users may also be technically capable of interfering with network security and controlling message traffic (hacking). The customer is therefore responsible for the security of the data he transmits to the Internet or on the server (e.g. by encryption).
 
 
§ 7 Cancellation policy for consumer contracts
(1)     In the event that the buyer is a natural person and concludes the contract for a purpose that can be attributed neither to his commercial nor his independent professional activity (consumer), he can revoke his contract declaration within 2 weeks without giving reasons. The revocation period begins upon receipt of the service, but not before ESONO has informed the purchaser of his right of revocation.
 
(2)     The revocation must be made in writing and is to be addressed to: ESONO AG, Grünwälderstrasse 10-14, 79098 Freiburg, Germany.
 
(3)     The right of revocation does not apply to goods manufactured according to customer specifications or clearly tailored to personal needs.
 
(4)     Any delivered goods are to be returned immediately after the timely exercise of the right of revocation at one's own cost and risk.
 
 
§ 8 Exemption
(1)     The customer undertakes to indemnify ESONO internally from all possible claims of third parties which are based on illegal actions of the customer or errors in the content of the information provided by the customer. This applies in particular to copyright, data protection and competition law infringements.
 
 
§ 9 Place of jurisdiction, applicable law
(1)     The exclusive place of jurisdiction for all disputes arising from this contract is Freiburg im Breisgau, if the customer is a merchant, a legal entity under public law, a special fund under public law or in Germany without a place of jurisdiction. ESONO is also entitled to sue the customer at his general place of jurisdiction. For the contracts concluded by ESONO on the basis of these General Terms and Conditions of Business and for claims of any kind arising therefrom, the law of the Federal Republic of Germany shall apply exclusively to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
 
 
§ 10 Final clauses
(1)     All ESONO declarations can be sent to the customer electronically. This also applies to settlements within the framework of the contractual relationship.
 
(2)     Should any provision of this contract be or become ineffective or should the contract contain a gap that needs to be filled, this shall not affect the effectiveness of the remaining provisions. The ineffective provision or the gap shall be replaced by a provision approaching the economic purpose of the agreement which would have been agreed by the parties if they had been aware of the ineffectiveness of the provision.
 
 
Section II - Special rules for domains, web hosting, e-mail, content management - and e-commerce systems
 
§ 1 Conclusion and termination of the contract
(1)     In the case of intended hosting contracts, which are initiated by means of remote communication, the contract is concluded with the allocation of storage space and login data.
 
(2)     ESONO is entitled to release the customer's domain after termination of the contract. With this release at the latest, all rights of the customer from the registration expire.
 
(3)     This does not affect the right of both parties to terminate the contract for good cause. An important reason exists for ESONO in particular if the customer culpably violates one of the provisions of this section. II Article 5, paragraph 3, subsection (1) II Article 5, paragraph 7 and section 7 II § 5 para. 8, the customer, despite a warning within a reasonable period of time, does not redesign his Internet presence in such a way that it does not comply with the obligations set out in section 5 para. 8. II § 5 para. 3 is sufficient.
 
 
§ 2 Prices and payment
(1)     If the prices are increased by a domain registry or a registrar, ESONO can adjust the prices accordingly. If the adjustment is unreasonable, the customer may terminate the contract in due time.

(2)     The customer is also responsible for costs caused by other persons via his access code.
 

§3 Obligations of ESONO
(1)     ESONO guarantees an annual average availability of 98% of its servers. This does not apply to times when the server cannot be reached via the Internet due to technical or other problems beyond ESONO's control (force majeure, fault of third parties, etc.). ESONO can restrict access to the services if the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disturbances of the network, the software or stored data require this.
 
(2)     Unless expressly agreed otherwise, the customer has no right to be assigned the same IP address for the entire term of the contract for his service.
 
 
§4 Internet domains
 (1)     The different top-level domains (domain extensions) are administered by a large number of different national and international organizations. Each of these organisations for the allocation of domains has established different conditions for the registration and administration of top-level domains, the associated sub-level domains and the procedure in domain disputes. As far as top-level domains are subject matter of the contract, the corresponding terms of allocation, which can be viewed on the websites of the respective domain registrars, also apply. For".de" domains, the DENIC Domain Terms and Conditions (http://www.denic.de/de/bedingungen.html) and the DENIC Guidelines (https://www.denic.de/en/domains/de-domains/domain-guidelines/) apply.
 
(2)     ESONO has no influence on the allocation of domains. Therefore, he does not guarantee that the domains requested for the customer can be assigned (delegated) at all and will exist free of third party rights or in the long term. This also applies to the subdomains assigned under the provider's domain.
 
(3)     The customer guarantees that the domain applied for by him does not infringe any rights of third parties. The customer releases ESONO, its employees and vicarious agents, the respective organization for the assignment of domains as well as other persons engaged for the registration from claims for compensation of third parties and all expenses which are based on the unauthorized use of an Internet domain by the customer or with the approval of the customer.
 
 
 §5 Duties of the customer
(1)     The customer manages his passwords and other access data conscientiously and takes care to keep them secret. He is obliged to change his passwords regularly, as far as they are assigned to him he will change them immediately.
 
(2)     The customer must access incoming messages in his POP3 e-mail inboxes at regular intervals. ESONO reserves the right to delete personal messages received for the customer unless they have been retrieved by the customer within four weeks of receipt on the mail server. ESONO further reserves the right to send back personal messages received by the customer to the sender if the capacity limits provided for in the respective tariffs are exceeded.
 
(3)     When designing his Internet presence, the customer undertakes not to use techniques that cause excessive use of ESONO facilities, in particular CGI and PHP scripts. ESONO can exclude Internet presences with these techniques from access by third parties until the customer has removed/deactivated the techniques.
 
(4)     ESONO is entitled to block systems or accesses if, in violation of the obligation under section 4.1.1, ESONO is not entitled to block systems or accesses. II § 5 para. 3 by the customer or a third party.
 
(5)     It is the customer's responsibility to make back-up copies of all data that he transfers to the storage space available to him at ESONO (back-up copies). The customer will back up these backups on data carriers which are not physically owned by ESONO.
With Chameleon CMS hosting, ESONO backs up data at least once a week.
 
(6)     If the data transfer volume (traffic) attributable to the customer's offer reaches or exceeds the maximum amount agreed with the customer for the respective month, ESONO shall invoice the customer for the excess volume in accordance with the price agreed with the customer.
 
(7)     The customer undertakes not to offer domains or contents which are extremist (especially right-wing extremist) in nature or which contain pornographic or commercial erotic offers.
 
(8)     Furthermore, the customer undertakes not to use the resources provided by ESONO for the following actions:

(a) unauthorized intrusion into other computer systems (hacking)

(b) obstructing other computer systems by sending/forwarding data streams and/or e-mails (spam/mail bombing)

(c) search for open access to computer systems (port scanning)

(d) sending e-mails to third parties for advertising purposes, provided that the recipient may not assume that the recipient has an interest in this (e.g. upon request or previous business relationship)

(e) forging IP addresses, mail and news headers and spreading viruses.

If the customer violates one or more of the mentioned obligations, ESONO is entitled to immediately stop all services. We expressly reserve the right to claim damages.
 
 
§ 6 Termination procedure
(1)     Deletion orders for domains require the signature of the domain holder / AdminC.
 
(2)     If the customer does not request the deletion of a domain in case of a cancellation, ESONO can return the domain to the responsible registry after expiration of a reasonable period. ESONO hereby points out that in this case the customer may continue to be obliged to pay a fee to the awarding authority.
 
(3)     Alternatively, ESONO may also have the domain deleted after a reasonable period of time.
 
(4)     If ESONO terminates the contract due to default of payment or for an important reason, ESONO can arrange for the deletion of the affected domains after a reasonable period of time.
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§ 7 Licenses and copyright
(1)     ESONO grants the customer a non-exclusive right to use (license) the programs provided or made available (e.g. operating systems, web server software, content management systems, e-commerce systems) for the entire duration of the contract. If the customer is authorized by ESONO for multiple licenses of the program, the following terms of use apply to each of these licenses. In addition, the license terms of the respective program manufacturers apply.
 
 
(2)     A sale of the provided software is not permitted in any case.
 
as of March 11th 2014