General Terms and Conditions of deLink GmbH
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.
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.
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.
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.
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.