1.1 STRATO delivers all its services exclusively based on these General Terms and Conditions (GTC). This especially holds true when a client makes use of general terms and conditions and these contain provisions that are contrary to or deviating from the present General Terms and Conditions. The present General Terms and Conditions shall also apply when STRATO executes an order without reservation despite knowledge of client conditions that are contrary to or deviating from the present General Terms and Conditions.
1.2 STRATO may change the present General Terms and Conditions with due notice. Unless the client objects to the modification within a time period specified by STRATO, the modification shall be deemed as approved. The client will be informed by STRATO's notice of modification that the modification will become valid should the client not object within the specified time period.
1.3 The full wording of the General Terms and Conditions may be made available by STRATO through a web link where the full wording may be accessed for download.
(2) Contractual Relationship, Beginning of Contract
2.1 The valid conclusion of a contract presupposes the transmission of complete and correct information.
2.2 The contract will be concluded by the activation of the login data.
2.3 With regard to domain registration, a direct contract is concluded between the client and the accrediting authority or the registrar. Unless STRATO itself is registrar for the respective Top Level Domain (TLD), STRATO will commission the domain registration based on an agency agreement with the client.
2.4 Top Level Domains are registered and administered by different organizations. Each Top Level Domain is subject to particular Accreditation Terms The foregoing provisions are integrated into this contract through hyperlinks.
2.5 The domain registration data are automatically transmitted to the respective accrediting authorities. The client can only rely on the actual allocation of a domain when Internet service has been appropriated for the requested domain. The allocation of ordered domains cannot be guaranteed.
(3) STRATO's Services
3.1 The scope of the individual services is determined by the service description applicable at the time of the order.
3.2 All servers in the STRATO Computing Centers are connected to the Internet by intricate system architecture. In- and outgoing data traffic is transmitted via routers, load balancers, switches etc., each of which has a specified maximum data throughput rate. There is no direct connection of individual servers to Internet transfer points. Therefore, for technical reasons, traffic capacities for server groups are limited at certain points. As a result of increased data traffic from or to individual servers, maximum data throughput rate of the respective individual server port may not be available for these servers and other servers interconnected to them. In these cases, the data throughput rate will be distributed among interconnected servers. The same shall apply to websites that share a common server. In the event of increased traffic, data throughput capacities will be distributed among the interconnected websites.
3.3 STRATO server availability and data flow up to the Internet transfer point (backbone) shall be a minimum yearly average of 99%. STRATO informs the client that there may be instances of service restrictions or reductions that cannot be controlled by STRATO. This shall particularly include third party actions that are not covered by a STRATO mandate, technical conditions of the Internet outside of STRATO's control and force majeure. Likewise, the client's hard- and software and his or her technical infrastructure may have an impact on STRATO's services. If such circumstances should have an impact on the availability of functionality of STRATO's services, STRATO's services shall nevertheless be deemed to be in conformity with the contract.
3.4 STRATO regularly performs systems maintenance work in order to assure network security, to maintain network integrity and services interoperability and to secure data protection. For this purpose and allowing for client interests, STRATO may temporarily interrupt or restrict its services, if objective reasons justify such measures. If possible, STRATO will execute maintenance work at times where Internet use is low. Should a temporary interruption or restriction become necessary for a longer time period, STRATO shall priorly inform the client about the nature, scope and duration of the impairment, as far as this is objectively possible in the circumstances and provided that informing the client would not delay the trouble-shooting process required to remedy interruptions that have already taken place.
3.5 STRATO may choose its technical infrastructure at its own discretion. STRATO may change the applied infrastructure, backbones, third party supplies and hard- or software at any time. The use of specific infrastructure, backbones, third party supplies and hard- or software shall only be part of the contractual agreement if this has been pointed out in the service description.
3.6 STRATO may modify its services if this is reasonably acceptable for the client in consideration of STRATO's interests.
3.7 In any case, STRATO may modify its services with due notice. Unless the client objects to the modification within a reasonable time period specified by STRATO, the modification shall become valid. The client will be informed by STRATO's modification notice that the modification will become valid should the client have no objection.
3.8 To the extent that fixed IP addresses are made available, STRATO reserves the right to change the IP address allocated to the client if this is required for technical or legal reasons.
3.9 If necessary and reasonable, the client cooperates in the change, e. g. by re-entering his or her access data or by simple adjustments of his or her systems.
3.10 STRATO reserves the right to limit the size of in- and outgoing emails to an extent that is reasonable for the client. STRATO is entitled to delete email messages of the provided accounts a) after they have been retrieved by the client, b) after they have been forwarded according to the client's instruction, and c) after they have been stored for 60 days. These provisions concerning emails shall not apply for dedicated or virtual servers where the client itself operates the email server.
(4) Client Obligations
4.1 The client shall provide necessary information in complete and correct detail and immediately communicate any modifications. This is particularly the case with respect to address, bank details, email address and credit cards.
4.2 STRATO may send information and declarations regarding the contract to the client's email address. The client shall regularly check the email address serving as contact address for STRATO.
4.3 The client shall set up his or her systems and programs in such a way so as not to impede security, integrity and availability of systems used by STRATO for the performance of its services. STRATO is entitled to suspend services if systems act or react in deviation from normal operating behavior resulting in the impediment of security, integrity or availability of the STRATO server systems.
4.4 The client shall promptly change the allocated passwords. He or she shall carefully administer passwords and other access data and not disclose them to others. He or she shall also pay for services that third parties use or order with his or her access data or passwords, if he or she is responsible for such use or order.
4.5 The client shall make backup copies of all data that is stored at STRATO, to be stored on data carriers that are not situated at STRATO. In the event of data loss, the client shall reload the affected data onto the STRATO server free of charge.
4.6 To a reasonable extent, the client shall cooperate in the registration, transfer and deletion of domains, the modification of entries in the databases of the accrediting authorities and the change of providers and registrars.
4.7 For certain virtual and dedicated servers, the client alone shall have administrator rights. STRATO cannot undertake the server management in this case. Security of the server shall therefore be the client's sole responsibility. The client shall be responsible for installing security software, keeping itself informed of any security gaps becoming known and to fill known security gaps. The installation of maintenance programs or any other programs made available or recommended by STRATO shall not release the client from this obligation. Every customer shall set up and manage its server so as to ensure that the security, integrity and availability of the networks, other servers, software and data of third parties is not put at risk.
(5) Client Responsibility and code of conduct
5.1 The client is responsible to ensure that his or her domain(s) and the corresponding content and any other stored data does not infringe on legal provisions or third party rights. STRATO hereby informs the client that - particularly for international domains - the laws of third countries may apply.
5.2 The client shall not provide domains or content that are of an extremist (particularly right-wing extremist) nature or that contain pornographic or commercially oriented erotic content. This shall also apply if such content is made available through hyperlinks or other links that the client creates to third party websites.
5.3 The sending of spam is not permitted. This particularly includes the sending of unlawful and unsolicited promotional material to third parties. Furthermore, with respect to the sending of emails, it is not permitted to state incorrect sender details or to otherwise conceal the sender's identity. As regards commercial communication, the client shall indicate the commercial nature through corresponding email design.
5.4 The client shall not surrender the use of dedicated or virtual servers available to third parties, neither in whole nor in part. STRATO may agree to a surrender of use. A prerequisite for this is that a separate reseller agreement is concluded. The surrender of use for free (whether in whole or in part) to anonymous third parties shall in any event be prohibited.
5.5 The client is responsible to ensure that the limited volumes of inclusive services are not to be exceeded, unless this was agreed upon in the contract. Should STRATO become aware of the fact that the traffic volume of the client of a Web Hosting package exceeds the stipulated monthly volume by more than 10%, then STRATO will inform the client accordingly. In such cases, STRATO may offer the client a contract upgrade to the next level (e. g. a superior Web Hosting package) with a corresponding greater traffic volume. Should the client refuse an offer to upgrade the contract to the next level, STRATO is entitled to terminate the contract with two weeks notice.
5.6 Alternatively, STRATO has an extraordinary right to terminate the contract with three weeks notice in the event of traffic excess pursuant to 5.4.
5.7 In the event of incorrectness of the data that have to be transmitted for a domain pursuant to the applicable registration terms and if STRATO is not able to contact the client through the transmitted data, STRATO is entitled to delete the domain.
(6) STRATO Measures on Infringements of Rights and Threats 6.1 Should third parties furnish prima facie evidence that the content of a website, any other data stored on STRATO servers or a domain itself constitutes an infringement of their rights, or if it is probable, based on objective grounds, that a domain or content infringes on legal provisions, STRATO is entitled to block the website or server as long as the infringement of rights or the dispute with the third party regarding the infringement of rights persists.
6.2 If the alleged infringement of rights is caused by a domain, STRATO may take measures to prevent access to the domain. Should the infringement of rights caused by a domain appear certain based on objective grounds, STRATO is entitled to terminate the contract without notice.
6.3 In the event of extremist, pornographic or commercially oriented erotic content, STRATO is entitled to terminate the contract without notice in place of blocking the domain.
6.4 Should the client send spam mail pursuant to 5.3, STRATO is entitled to temporarily block the client's email accounts on the email server. Should the server concerned be a dedicated or virtual server, STRATO may temporarily block the entire server in this case.
6.5 Should spam mail as mentioned in 5.3 contain a URL or a hyperlink that is administered by STRATO or the content of which is stored in the STRATO Computing Center, STRATO is entitled to temporarily block the domain or content.
6.6 Based on objective criteria, STRATO is entitled to refuse emails directed to their clients, if there is sufficient evidence to assume that an email contains harmful software (viruses, worms or Trojans etc.), the sender details are incorrect or concealed or the email contains unsolicited or concealed commercial communication.
6.7 If a client puts the security, integrity and availability of networks, servers, software or data at risk through its own dedicated or virtual servers - in particular in the event of a breach of clause 4.7 -, or if STRATO suspects so based on objective grounds, STRATO may temporarily block the server concerned. For the sake of clarification, this shall also apply for what is known as "denial of service attacks" (DoS Attacks) which the client launches through its server. In the event of a wilful act on the part of the client, STRATO shall be entitled to terminate the contractual relationship without notice.
6.8 If a dedicated or virtual server puts the security, integrity and availability of networks, servers, software or data at risk without the client being responsible for this, or if STRATO suspects so based on objective grounds, STRATO may temporarily block the server concerned. For the sake of clarification, this provision shall also apply for DoS Attacks for which the client's server is used by third parties. STRATO hereby points out that it is often due to a client's conduct on third parties if it becomes the target of a DoS Attack. If a server is repeatedly affected by DoS Attacks and further repetition is to be expected, while there is no possibility reasonably available to STRATO to prevent the expected future DoS Attacks or their effects on other systems, STRATO may terminate the contractual relationship without notice after issuing a written warning.
6.9 If services are suspended due to the foregoing reasons, STRATO's payment claims shall persist unaffected thereof.
(7) Payment Terms
7.1. Fixed fees shall be paid in advance. Usage fees are due and payable at the end of the respective billing period. Usage fees are calculated with reference to the current price list that STRATO establishes at its reasonably exercised discretion. The client shall effect payment through credit card. The client authorizes STRATO to collect all fees resulting from the contract by charging his credit card. Prices exclude VAT, unless otherwise stated.
7.2 STRATO shall make an electronic invoice available on its Customer Service page for each payment transaction.
7.3 STRATO may modify prices at the beginning of the next contractual term with due notice of a minimum of one month. Unless the client objects to the modification within a reasonable time period specified by STRATO, the modification shall be deemed as approved. The client will be informed by STRATO's modification notice that the modification will become valid should the client have no objection.
7.4 In the event of changes to domain registrar fees, STRATO may adjust its prices accordingly. Should the adjustment be unreasonable, the client is entitled to terminate the contract as of the effective date of the price increase.
7.5 The client may only offset against STRATO's claims if the client's counterclaims have not been contested or are recognized by declaratory judgment.
7.6 Should the client be in default of payment, STRATO is entitled to suspend all services. STRATO's payment claims shall persist unaffected hereof. Should STRATO suspend a service with good reason because of default in payment, STRATO is entitled to charge an administrative fee of €10.00 for the resumption of service. We reserve the client`s right to prove, that no damage has occurred or that the damage is considerably lower.
7.7 In the event of the client's default in payment of a significant part of the fees of two subsequent months or a default of payment for a period of more than two months for an amount corresponding to a monthly fee, STRATO is entitled to terminate the contract without notice for good cause. STRATO is also particularly entitled to termination without notice for good cause, if an insolvency petition has been filed against the client, the client's property has been subject to insolvency proceedings or a petition to open insolvency proceedings has been dismissed due to a lack of assets.
7.8 In the event of default in payment, STRATO is entitled to levy reminder charges amounting to €10.00 each for the first and second reminder and for each illegitimate charge back. We reserve the client`s right to prove, that no damage has occurred or that the damage is considerably lower.
7.9 In the event of a default in payment, STRATO is entitled to levy default interest.
(8) STRATO Liability
8.1 With respect to all contractual and non-contractual claims that arise out of the contract, STRATO shall only be liable according to the following conditions:
8.1.1 full liability for intentional damage and death or bodily harm and/or injuries to health; if the claim is based on Product Liability the extent of liability is determined by the national transformation of the Product Liability Directive, 85/374/EEC;
8.1.2 full liability for damage due to gross negligence of legal representatives, executives or persons employed in the performance of obligations;
8.1.3 if the client is an entrepreneur, a public law entity or a public sector special fund, STRATO's liability for damage due to gross negligence of ordinary employees is restricted to the damage typically foreseeable at conclusion of the contract; STRATO's liability is restricted to the overall sum of the contractual fees that STRATO has received from the client in the context of the specific contract during the last two years preceding the occurrence of the action causing the damage; the liability for gross negligence towards consumers is unlimited;
8.1.4 in the event of negligent infringement of an obligation essential for the contract, liability is restricted to the damage that was typically foreseeable at conclusion of the contract;
8.1.5 in the event of ordinary negligence, STRATO's liability is restricted to the overall sum of the contractual fees that STRATO has received from the client in the context of the specific contract during the last two years preceding the occurrence of the action causing the damage; liability for indirect damage due to ordinary negligence is excluded.
8.2 Except for claims for intentional damage or damage due to gross neglicence or death or bodily harm and/or injuries to health, all damage claims are subject to a limitation period of one year from the date of knowledge of the action causing the damage.
(9) Use of Data
(10) Intellectual Property Rights
10.1 STRATO grants the client a non-exclusive right of use of the provided STRATO or third party software, programs and scripts limited to the term of the respective contract. The granting of a right of use to third parties is not permitted. Particularly the sale of such rights is not permitted. The client shall delete and discontinue the use of all copies of the provided software upon termination of the contract.
10.2 In other respects, the licensing terms of the respective manufacturer shall apply.
10.3 The client is entitled to use the contents, texts, images, animations, film and sound material provided by STRATO for the design of the website hereunder during the contractual term. The granting of a right of use to third parties is not permitted. The client shall delete all material upon termination of the contract.
10.4 With respect to LivePages, the license shall grant a right of use only for the Internet package ordered with the respective LivePages. The use of LivePages software and LivePages material for other websites of the client is excluded. This shall not apply to cases where the client disposes of several domains that all refer to the same content or sub-sections of a specific content. In the event of a violation of the foregoing provisions, STRATO is entitled to block the website or the project that uses LivePages that is in breach of the licensing terms until lawful use has been proven.
(11) Term, Termination, Deletion of Domain Names
11.1 Unless otherwise stated in the concrete offer, the contract shall terminate on expiry of the contract period stated in the offer. The customer can extend the contract by one contract period respectively. This extension shall be valid once payment for the next contract period has been made. The extension must occur at the latest 7 days and at the earliest 30 days prior to expiry of the current contract period. The contract extension must be requested via the secure customer services area.
11.2 The contract can be terminated on one month's notice before the end of the respective period.
11.3 The termination of the contract shall not be valid unless made in writing, fax transmission is accepted. The contract can also be validly terminated via the secure customer service area, if this option is available.
11.4 The domains shall be deleted on termination of the contract. If, according to the accreditation terms, deletion is not permitted without the express instruction of the owner of the domain, STRATO can transfer the domain to the relevant registration organisation for further administration. STRATO hereby informs the client that in such cases the client's payment obligation towards the accrediting authority may persist.
11.5 A request for the deletion of a domain shall not be valid unless signed by the domain holder/AdminC.
11.6 If STRATO legitimately terminates the contract due to customer's default in payment or for material breach, STRATO is entitled to delete the respective domains after expiration of an appropriate period of time, provided that the client does not issue instruction to the contrary.
The client shall compensate STRATO for any damage resulting from breach of the foregoing provisions to the extent that it is responsible for that. Damage compensation shall also include the reasonable costs of any legal defence that may become necessary. STRATO shall inform the client without undue delay if itself or any third parties assert such claims and shall give the client the opportunity to state its view.
(13) Place of Jurisdiction, applicable law
Unless the client is a consumer exclusive place of jurisdiction for all disputes arising out of or on the occasion of this contract is Berlin (Germany). For all claims whatsoever of non consumer clients arising out of or on the occasion of this contract, the law of the Federal Republic of Germany under exclusion of the Uniform UN Sales Law (CISG) shall apply.