General Terms and Conditions of deLink GmbH
Scope
deLink provides all deliveries and services exclusively on the basis of these terms and conditions, which the customer acknowledges by placing the order or accepting the service. They also apply to all future business relations, even if they are not expressly agreed again. The application of deviating terms and conditions of the customer is excluded. This also applies if deLink does not expressly object to the deviating terms and conditions or if the customer refers to these deviating terms and conditions. deLink is entitled to change or amend these general terms and conditions with a reasonable notice period. The announcement will be made exclusively by publication on the internet on the pages of deLink. If the changes are to the disadvantage of the customer, he may terminate the contractual relationship with deLink within one month after publication of the notice of change. If the customer does not object to the amended or supplemented terms and conditions within one month after their publication on the Internet, the amended or supplemented terms and conditions will become effective. If the customer objects within the time limit, deLink is entitled to terminate the contract at the point in time at which the amended or supplemented terms and conditions are to take effect.
Deliveries, services
deLink reserves the right to improve the deliveries and services within the scope of technical progress. The customer will inspect delivered goods for transport damage immediately after delivery. Hardware will be installed, commissioned and tested by the customer. The risk shall pass to the customer upon delivery. The customer assures that he is entitled to have additional equipment or model and type changes installed in the computers intended for this purpose, even if he is not their owner. deLink will not install programs which are the subject of the contract, unless this has been expressly agreed. The functionality of programs already installed at the customer's together with new programs which are the subject matter of the contract is not owed, unless expressly agreed. The object of deLink's obligation to perform - even if the installation as such is provided by deLink - is in particular not the adaptation of programs already existing at the customer to the software which is the subject matter of the contract. This also applies if the programs already existing at the customer's site have been obtained from deLink. Further accompanying services provided by deLink, including user introduction, training and the like, are only part of the contract if this has been expressly agreed.
When procuring and/or maintaining Internet domains, deLink will only act as an intermediary in the relationship between the customer and DENIC or other organizations for domain allocation. Through the contracts with such organizations concerning the individual domains, only the customer is entitled and obligated. deLink has no influence on the domain allocation. deLink therefore does not guarantee that the domains applied for and delegated for the customer are free of third party rights or that they will last in the long run. The customer agrees not to misuse domains. The customer hereby indemnifies deLink from any claims of third parties based on the illegal, abusive or criminally actionable use of an internet domain.
Obligations of the customer
The customer is obliged to use the services of deLink properly. In particular, he is obliged to,
a) to inform deLink upon request which technical equipment is used for the use of deLink's services,
b) to ensure compliance with statutory regulations and official requirements and to ensure that official permits are granted, insofar as these are currently required or will be required in the future for the use of deLink's services,
c) to comply with the recognised principles of data security, in particular to keep passwords secret or to change them immediately or to arrange for changes to be made if it is suspected that unauthorised third parties have gained knowledge of them.
If, due to the customer's fault, third parties use deLink's services by misusing the passwords, the customer will be liable to deLink for usage fees and damages.
The customer has to retrieve incoming messages for him via the internet in regular intervals of a maximum of one week and to store them on his own computers. deLink reserves the right to delete personal messages received for the customer after 3 months without further inquiry,
d) to carry out a complete data backup before any work is started by deLink or before the installation of supplied hardware or software. The customer shall also thoroughly test each program for freedom from defects and usability in its specific situation before commencing operational use of the program,
d) not to misuse the access to deLink's services and to refrain from illegal actions; this also includes the precaution to be taken by the customer that no violations of protective laws for the benefit of third parties as well as criminal or regulatory provisions occur through the use of deLink's services. In particular, the customer must ensure that the possibilities provided by deLink for sending e-mails are not misused for unsolicited mass mailings or advertising mails.
e) to notify deLink immediately of any recognisable defects or damage,
(f) to take all reasonable steps to enable the defects or damage and their causes to be ascertained or to facilitate or expedite the rectification of the fault,
g) after submitting a fault report, to reimburse deLink for the expenses incurred by the inspection of its equipment, if and to the extent that it is found after inspection that the fault was the responsibility of the customer,
h) to inform deLink without delay of any change in his name, his company name, his place of residence or business, his billing address, his legal form, his shareholder status as well as any other material circumstances which could have legal consequences for the contractual relationship with deLink.
If the customer violates the above mentioned obligations, deLink is entitled to terminate the contractual relationship without notice. In addition, deLink is entitled to claim compensation from the customer for all damages incurred by deLink as a result of the customer's breach of the aforementioned obligations.
Contents of Internet pages
The customer may not violate legal prohibitions or morality or the rights of third parties (name, copyright, data protection rights, etc.) with the form, content or pursued purpose of his Internet pages. In particular, the customer undertakes not to offer or allow to be offered within the framework of his presence any pornographic content and no services aimed at making a profit which have pornographic and/or erotic content (e.g. nude pictures, peep shows etc.) as their subject matter. For each case of violation of the above obligation, the customer promises to pay a contractual penalty of € 5,000, excluding the assumption of a continuation connection. In addition, a violation of the aforementioned obligations by the customer entitles deLink to refuse the inclusion of Internet pages, to delete the pages and references to them immediately and to terminate the contract without notice. deLink does not assume any obligation to review in this regard. In case of violation of the customer's internet pages against legal prohibitions or morality or rights of third parties, the customer is liable to deLink for compensation of all resulting direct and indirect damages, including pecuniary damages. He exempts deLink in the internal relationship from possible claims of third parties, which are based on contents of internet pages of the customer. deLink does not take over any guarantee for the correct reproduction of the internet pages of the customer in the internet presence, unless deLink can be charged with intention or gross negligence. For indirect damages and consequential damages as well as for lost profits deLink is only liable in case of intent.
Liability of deLink
In case of failures of deLink's services caused by a malfunction beyond deLink's responsibility, no refund of already paid fees will be made.
deLink is liable for personal injury, property damage and pecuniary loss insofar as these have been caused by deLink intentionally or through gross negligence or they are based on the breach of a material contractual obligation of deLink or on the absence of a characteristic warranted by deLink.
Contract offer, conclusion of contract
The contract comes into effect with the countersignature of the customer's application by deLink or the provision of the service or with the first act of performance, without any notification to the customer being required. The scope of deLink's services results from the current service description and price list for the respective service, the order form, the order confirmation, these general terms and conditions as well as other written agreements between deLink and the customer. deLink may use third parties as vicarious agents in the performance of its service obligations. This does not affect the contractual obligations of deLink. Insofar as the provision of services is dependent on the use of transmission paths and switching equipment of third parties, deLink points out that quality deviations may occur, as the performance standards of other providers are decisive.
Acceptance
If neither of the contracting parties requests formal acceptance, or if the acceptance date requested by one of the parties does not occur due to circumstances for which the customer is responsible, deLink's contractual service shall be deemed to have been accepted upon use by the customer.
Retention of title
Until full payment of the purchase price, all delivered goods remain the property of deLink. If the customer is in default of payment, deLink may, without prejudice to any other rights, take back the delivered goods to secure its rights if it has given notice of this to the customer and set a reasonable grace period.
Obligations of the deLink
deLink will provide the deliveries and services ordered by the customer in accordance with the agreement and provides a warranty for them within the scope of the statutory provisions.
In the event of foreseeable longer, temporary cessation or restriction of services, deLink will inform the customer in a suitable form of the nature, extent and duration of the cessation of services. There shall be no obligation to notify the customer of the commencement of the discontinuation if prior notification is objectively not possible under the circumstances or would delay the elimination of interruptions that have already occurred.
Prices, terms of payment
Unless otherwise agreed in individual contracts, deLink will invoice the customer in advance for the fees for the services provided at the end of each month and for the periodic basic fee, if a basic fee is charged for the services concerned, at the beginning of the billing period in accordance with the applicable price list for the service concerned plus VAT. The fees for Internet domains shall become due at the beginning of each new billing period, unless the Internet domain is cancelled in writing (at least by fax) by the Admin-C registered for the domain 30 days before the end of the reservation period. All invoices are due within 14 days upon receipt of the invoice by the customer.
The prices of deLink valid at the time of the conclusion of the contract for the respective service in question result from the price list valid at that time, which is published on the internet pages of deLink or is handed over to the customer with a binding offer or conclusion of the contract. deLink may change prices at any time. In this case, the customer may terminate the contract within one month after receipt of the written notification with effect from the date of the price change, if this price change should result in an overall additional charge for the customer.
deLink is entitled to send the customer proofs of use and invoices in any suitable form, in particular also by email. The customer will grant deLink a direct debit authorization at the latter's request.
deLink is entitled to block the service for the customer in whole or in part if the customer is in default with an amount of at least € 50,-. In this case, the customer remains obligated to continue paying the regular basic fees for the ordered service.
In the event of default in payment, the customer will also pay deLink default interest at the usual bank rate. In case of default of payment, deLink also reserves the right to assert all further claims.
If the customer is in default of payment of his fees or a not insignificant part of the fees for two consecutive months or, in a period extending over more than two months, is in default of payment of fees amounting to the monthly basic fee for two months, deLink is also entitled to terminate the contractual relationship without notice.
Objections to invoices, use by third parties
Objections to the amount of the invoice must be raised by the customer in writing without delay, but no later than six weeks after the invoice date. Failure to raise objections in good time shall be deemed to constitute approval. The customer is obliged to pay all charges caused by him. In particular, the customer must also pay the fees incurred by third parties within the scope of the access and usage options made available to him through authorized or unauthorized use of deLink's services, unless he can prove that he did not cause the fees charged to him.
Data protection
deLink stores all data of the customer electronically for the duration of the contractual relationship, to the extent necessary to fulfill the purpose of the contract. deLink also processes and uses the collected inventory data to advise its customers, for advertising and market research for its own purposes and for the design of its services as required. deLink will provide the customer upon request at any time about the stored data, as far as it concerns him, completely and free of charge. deLink will neither this data nor the content of private messages of the customer without his consent to third parties. deLink expressly points out to the customer that the data protection for data transmissions in open networks, such as the Internet, according to the current state of the art, can not be fully guaranteed. The customer is informed that deLink can view the pages stored on the web server and possibly other data of the customer stored there from a technical point of view at any time. Other participants on the Internet may also be technically able to intervene in network security without authorization and to control message traffic. The customer is fully responsible for the security of the data he transmits to the Internet and stores on web servers.
Final provisions
Any amendment, supplement or the partial or complete cancellation of the contract must be made in writing. The exclusive place of jurisdiction for all disputes arising from this contract is Hamburg, if the customer is also a registered trader. For the contracts concluded by deLink on the basis of these General Terms and Conditions and for claims of any kind arising from them, the law of the Federal Republic of Germany shall apply exclusively. If provisions of these general terms and conditions and/or the contract are or become invalid or incomplete, this does not affect the validity of the remaining provisions. Rather, in place of each invalid provision, a substitute provision shall apply which corresponds or at least comes close to the purpose of the agreement, as the parties would have agreed to achieve the same economic result if they had known of the invalidity of the provision.
Scope of application
deLink provides all deliveries and services exclusively on the basis of these terms and conditions, which the customer acknowledges by placing the order or accepting the service. They shall also apply to all future business relationships, even if they are not expressly agreed again. The application of deviating terms and conditions of the customer is excluded. This shall also apply if deLink does not expressly object to the deviating terms and conditions or if the Customer refers to these deviating terms and conditions. deLink shall be entitled to amend or supplement these General Terms and Conditions with a reasonable period of notice. The announcement shall be made exclusively by publication on the deLink website. If the changes are to the Customer's disadvantage, the Customer may terminate the contractual relationship with deLink within one month of publication of the notification of change. If the Customer does not object to the amended or supplemented terms and conditions within one month of their publication on the Internet, the amended or supplemented terms and conditions shall become effective. If the Customer objects in due time, deLink shall be entitled to terminate the contract on the date on which the amended or supplemented terms and conditions are to enter into force.
Deliveries, services
deLink reserves the right to improve deliveries and services in line with technical progress. The customer shall inspect delivered goods for transportation damage immediately after delivery. Hardware shall be installed, commissioned and tested by the Customer itself. The risk shall pass to the customer upon delivery. The customer assures that it is authorized to have additional equipment or model and type changes installed in the computers intended for this purpose, even if it is not the owner of the equipment. deLink shall not install contractual programs unless this has been expressly agreed. The functionality of programs already installed at the customer's premises together with new, contractual programs is not owed, unless expressly agreed. The object of deLink's obligation to perform - even if the installation as such is provided by deLink - is in particular not the adaptation of programs already installed at the Customer's premises to the contractual software. This also applies if the programs already available at the Customer's premises have been obtained from deLink. Other accompanying services provided by deLink, including user introduction, training and the like, shall only form part of the contract if this has been expressly agreed.
When procuring and/or maintaining Internet domains, deLink shall only act as an intermediary in the relationship between the Customer and DENIC or other organizations for the allocation of domains. Only the Customer shall be entitled and bound by the contracts with such organizations relating to the individual domains. deLink has no influence on the allocation of domains. deLink therefore assumes no guarantee that the domains applied for and delegated for the Customer are free of third-party rights or that they will continue to exist in the long term. The Customer undertakes not to misuse domains. The Customer hereby indemnifies deLink against any third-party claims based on the unauthorized, improper or criminally prosecutable use of an Internet domain.
Obligations of the customer
The customer is obliged to make proper use of deLink's services. In particular, it is obliged
a) to inform deLink on request which technical equipment is being used to utilize deLink's services,
b) to ensure compliance with legal regulations and official requirements and to ensure that official authorizations are granted if these are required now or in the future for the use of deLink's services,
c) to comply with the recognized principles of data security, in particular to keep passwords secret or to change them immediately or arrange for changes to be made if it is suspected that unauthorized third parties have gained knowledge of them.
If, through the Customer's fault, third parties use deLink's services by misusing passwords, the Customer shall be liable to deLink for usage fees and damages.
The Customer must retrieve messages received for it via the Internet at regular intervals of no more than one week and store them on its own computers. deLink reserves the right to delete personal messages received for the Customer after 3 months without further inquiry,
d) to carry out a complete data backup before any work is started by deLink or before the installation of hardware or software supplied. The Customer shall also thoroughly test each program to ensure that it is free of defects and usable in its specific situation before commencing operational use of the program,
d) not to misuse the possibility of accessing deLink's services and to refrain from unlawful acts; this also includes the precautions to be taken by the Customer to ensure that the use of deLink's services does not violate protective laws in favor of third parties or criminal or regulatory provisions. In particular, the Customer must ensure that the facilities provided by deLink for sending e-mails are not misused for unsolicited mass mailings or advertising e-mails.
e) to notify deLink immediately of any recognizable defects or damage,
f) to take all reasonable measures to enable the defects or damage and their causes to be identified or to facilitate or accelerate the elimination of the fault,
g) after submitting a fault report, to reimburse deLink for the expenses incurred by deLink in inspecting its facilities if and insofar as it is established after inspection that the fault was the responsibility of the customer,
h) to inform deLink immediately of any change to its name, company name, place of residence or business, billing address, legal form, shareholder structure or other significant circumstances which could have legal consequences for the contractual relationship with deLink.
If the Customer breaches the aforementioned obligations, deLink shall be entitled to terminate the contractual relationship without notice. In addition, deLink shall be entitled to claim compensation from the Customer for all damages incurred as a result of the Customer's breach of the aforementioned obligations.
Contents of Internet pages
The customer may not violate legal prohibitions or morality or the rights of third parties (rights to a name, copyright, data protection rights, etc.) with the form, content or purpose of its Internet pages. In particular, the customer undertakes not to offer or allow to be offered any pornographic content or any services aimed at making a profit which have pornographic and/or erotic content (e.g. nude pictures, peep shows etc.) as their subject matter. For each case of infringement of the above obligation, the customer promises to pay a contractual penalty of € 5,000, excluding the assumption of a continuation of the infringement. In addition, any breach of the above obligations by the Customer shall entitle deLink to refuse the inclusion of Internet pages, to immediately delete the pages and any references to them and to terminate the contract without notice. deLink shall not be obliged to carry out any checks in this respect. If the Customer's Internet pages violate statutory prohibitions or morality or the rights of third parties, the Customer shall be liable to deLink for compensation for all direct and indirect damages arising therefrom, including financial loss. The Customer shall indemnify deLink internally against any third-party claims arising from the content of the Customer's Internet pages. deLink accepts no liability for the correct reproduction of the Customer's Internet pages in the Internet presence, unless deLink can be accused of intent or gross negligence. deLink shall only be liable for indirect damage and consequential damage as well as for loss of profit in the event of intent.
Liability of deLink
In the event of failure of deLink's services caused by a disruption for which deLink is not responsible, deLink shall not refund any fees already paid.
deLink shall be liable for personal injury, property damage and financial loss insofar as these are caused by deLink intentionally or through gross negligence or are based on the breach of a material contractual obligation by deLink or on the absence of a characteristic warranted by deLink.
Contract offer, conclusion of contract
The contract is concluded when deLink countersigns the Customer's application or provides the service or with the first act of performance, without any notification to the Customer being required. The scope of deLink's services is set out in the current service description and price list for the relevant service, the order form, the order confirmation, these General Terms and Conditions and other written agreements between deLink and the Customer. deLink may use third parties as vicarious agents in the fulfillment of its service obligations. This shall not affect deLink's contractual obligations. If the provision of services is dependent on the use of third-party transmission paths and switching equipment, deLink points out that there may be deviations in quality, as the performance standards of other providers are decisive.
Acceptance
If neither of the contracting parties requests formal acceptance, or if the acceptance date requested by one party does not materialize due to circumstances for which the customer is responsible, deLink's contractual service shall be deemed to have been accepted upon use by the customer.
Retention of title
All goods delivered shall remain the property of deLink until the purchase price has been paid in full. If the customer defaults on payment, deLink may, without prejudice to other rights, take back the delivered goods to secure its rights if it has notified the customer of this and granted the customer a reasonable grace period.
Obligations of deLink
deLink shall provide the goods and services ordered by the customer as agreed and shall provide a warranty for them in accordance with the statutory provisions.
In the event of foreseeable longer, temporary service suspensions or restrictions, deLink shall inform the Customer in an appropriate form of the type, extent and duration of the service suspension. There is no obligation to notify the Customer of the start of the suspension if prior notification is not objectively possible under the circumstances or would delay the elimination of interruptions that have already occurred.
Prices, terms of payment
Unless otherwise agreed in individual contracts, deLink shall invoice the customer in advance at the end of each month for the fees for the respective services rendered as well as the periodic basic fee, if a basic fee is charged for the respective services, at the beginning of the billing period in accordance with the applicable price list for the respective service plus VAT. The fees for Internet domains are due at the beginning of the new billing period unless the Internet domain is canceled in writing (at least by fax) by the Admin-C registered for the domain 30 days before the end of the reservation period. All invoices are due for payment within 14 days of receipt by the customer.
The prices of deLink for the respective service valid at the time of conclusion of the contract are set out in the price list valid at that time, which is published on deLink's website or provided to the Customer when a binding offer or contract is concluded. deLink may make price changes at any time. In this case, the Customer may terminate the contract within one month of receipt of the written notification, with effect from the date of the price change, if this price change results in an overall additional charge for the Customer.
deLink shall be entitled to send the Customer proof of use and invoices in any suitable form, in particular by email. At deLink's request, the Customer shall issue deLink with a direct debit authorization.
deLink is entitled to block the service for the Customer in whole or in part if the Customer is in arrears with an amount of at least € 50. In this case, the Customer shall still be obliged to pay the regular basic fees for the ordered service.
In the event of late payment, the Customer shall also pay deLink default interest at the usual bank rate. In the event of late payment, deLink also reserves the right to assert all further claims.
If the Customer is in default of payment for two consecutive months or a not insignificant part of the fees or in a period of more than two months with the payment of the fees in an amount that reaches the monthly basic fee for two months, deLink is also entitled to terminate the contractual relationship without notice.
Objections to invoices, use by third parties
Objections to the amount of the invoice must be raised by the customer in writing without delay, but no later than six weeks after the invoice date. Failure to raise objections in good time shall be deemed approval. The customer is obliged to pay all charges incurred by him. In particular, the Customer shall also pay the charges incurred by it within the scope of the access and usage options made available to it through authorized or unauthorized use of deLink's services by third parties, unless it can prove that it did not cause the charges invoiced to it.
Data protection
deLink stores all customer data electronically for the duration of the contractual relationship, insofar as this is necessary to fulfill the purpose of the contract. deLink also processes and uses the collected inventory data to advise its customers, for advertising and market research for its own purposes and for the needs-based design of its services. deLink shall provide the customer with complete and free information about the stored data at any time upon request, insofar as it concerns the customer. deLink shall not forward this data or the content of the customer's private messages to third parties without the customer's consent. deLink expressly points out to the customer that data protection for data transmissions in open networks, such as the Internet, cannot be fully guaranteed according to the current state of technology. The Customer is informed that deLink can view the pages stored on the web server and possibly also other Customer data stored there at any time from a technical point of view. Other Internet users may also be in a technical position to intervene in network security without authorization and to monitor message traffic. The customer himself is fully responsible for the security of the data he transmits to the Internet and stores on web servers.
Final provisions
Any amendment, supplement or partial or complete rescission of the contract must be made in writing. The exclusive place of jurisdiction for all disputes arising from this contract shall be Hamburg if the Customer is also a registered trader. The law of the Federal Republic of Germany shall apply exclusively to contracts concluded by deLink on the basis of these General Terms and Conditions and to claims of any kind arising from them. Should provisions of these General Terms and Conditions and/or the contract be or become invalid or incomplete, this shall not affect the validity of the remaining provisions. Instead, each invalid provision shall be replaced by a provision that corresponds or at least comes close to the purpose of the agreement, as the parties would have agreed to achieve the same economic result if they had been aware of the invalidity of the provision.