Version 5.1 from 29.05.2018
The content of this page has been automatically translated and is currently undergoing manual revision.
§1 Definitions
- Customer refers to the contractual partner of CPS.
- Third party means all persons (including legal entities) other than the contracting parties themselves, including vicarious agents of the contracting parties, with the exclusive exception of public offices and authorities, legal representatives, tax advisors, auditors and notaries and other professionals who are subject to a duty of confidentiality by law.
- Domain holder refers to a person materially authorised to a domain. Alternatively, this term can be used for a person who wishes to obtain this status by means of a corresponding order.
- Certificate holder refers to the holder of a digital certificate. Alternatively, this term can stand for a person who wishes to obtain this status by means of a corresponding order.
- TLD (Top Level Domain) refers to the top level of the domain hierarchy.
- NIC (Network Information Center) refers to an organisation that is responsible for the central administration of one or more TLDs and sets the corresponding allocation conditions for these.
- WHOIS refers to the public databases of the registries that provide information about the holder data and technical details of a domain.
- CA, Trust Centre (Certification Authority) refers to a certification service provider that issues digital certificates.
§2 Confidentiality
Both contracting parties are obliged not to disclose to third parties or utilise in any other way any information which has become known to them in connection with this contract and its execution and which is obviously confidential, as well as any internal company information which has become known to each other, and to ensure that this obligation is also observed by the persons or companies employed by them. All business, operational, organisational and technical knowledge, processes and information which, according to the recognisable will of the contracting party, are only accessible to a specific group of persons and should not become known to the general public, including all access data provided to the customer and thus access to the platforms of CPS per se, are deemed to be internal company information. The confidentiality obligation remains in force even after expiry or termination of the contractual relationship.
§3 Copyrights, software licences
- If CPS provides the customer with software (e.g. registration software), a non-exclusive right of use is transferred to the customer for the duration of the contract term. In all other respects, the licence terms of the respective program manufacturer apply.
- As soon as the customer’s right of use ends (e.g. through termination of the contract), the customer must return all data carriers with programmes, any copies and all written documentation and advertising aids to CPS. The customer is then obliged to immediately delete the software in any form from his or rented computers, unless he is legally obliged to retain it for a longer period.
§4 Obligations of the customer
- The customer is obliged not to misuse the respective services of CPS and must refrain from illegal activities.
- The customer must ensure the fulfilment of legal regulations and official requirements, insofar as these are or will be necessary for participation in the data exchange at present or in the future.
- The customer undertakes to notify CPS immediately of any recognisable defects or damage (fault reports) and to take all measures which enable the defects or damage and their causes to be identified or which facilitate or accelerate the elimination of the fault.
- The customer undertakes, when designing his Internet presence and/or developing software with access to the systems of CPS, to refrain from using techniques that cause excessive utilisation of the facilities of CPS. CPS can exclude Internet presences or IP addresses with these techniques from any access until the customer has removed / deactivated the techniques.
- The customer also undertakes not to use the resources provided by CPS for the following actions:
- Unauthorised intrusion into third-party computer systems (hacking);
- Obstructing third-party computer systems by sending / forwarding data streams and / or e-mails (spam / mail bombing),
- Searching for open access to computer systems (port scanning);
- Sending e-mails to third parties for advertising purposes, unless he can assume that the recipient has an interest in this (e.g. following a request or previous business relationship);
- falsifying IP addresses, mail and news headers and spreading viruses.
§5 Fees and payment
- CPS receives the fees agreed in the Annex (Annex A) to this contract.
- Invoices are issued monthly at the beginning of each month; the invoiced fee is due immediately without deduction.
- If the customer does not participate in the direct debit procedure or a comparable procedure in terms of processing, the invoice amount must be credited to the account of CPS specified in the invoice no later than the fourteenth day from the invoice date. If this period expires without payment, the customer is in default.
- The customer must ensure that his account has sufficient funds during the debit period. Should the contractor incur costs due to the refusal to pay by the account-holding institution, the customer shall reimburse these costs immediately upon request.
- Objections to invoiced deliveries and services must be notified to CPS in writing by fax or letter post within fourteen days of the invoice date. After expiry of this period, the amounts are deemed to be authorised.
- If the customer is in default of payment, CPS is entitled to claim interest of 8% p.a. above the respective base rate of the European Central Bank as minimum default damages from the relevant date. This does not exclude the assertion of a higher damage caused by default with corresponding proof; the customer is also at liberty to prove that a higher, lower or no damage has occurred.
- If the customer is in arrears with one or more payments, he will be informed of this by CPS. If the customer fails to settle the outstanding item(s) within fourteen days of receiving this payment reminder, CPS is entitled to block access to the CPS platforms in accordance with Section 10 (3). If the customer remains in default fourteen days after a further request for payment, CPS is entitled to terminate the contract without notice in accordance with §12 para. 3 and thus to discontinue all deliveries and services.
- Deliveries and services remain the property of CPS until the purchase price has been paid in full. If the customer defaults on payment, CPS may, without prejudice to other rights, take back the delivered goods to secure its rights if CPS has notified the customer of this and set him a reasonable grace period.
- The customer can only offset claims of CPS with undisputed, expressly recognised or legally established claims. The customer is only entitled to assert a right of retention due to counterclaims arising from this contract.
- The customer waives his right to determine performance and agrees to offsetting in accordance with Section 366 (2) BGB.
§6 Performance obligations
- If repair times become necessary on CPS servers on which the customer’s content is stored, which foreseeably make it impossible for users to access these files and data for more than four hours, CPS will inform the customer of this by email at least 3 working days in advance.
- Insofar as CPS provides additional services free of charge, the customer has no claim to their fulfilment. CPS is authorised to discontinue or change such services previously provided free of charge within a period of 24 hours or to offer them only for a fee. In this case, CPS will inform the customer immediately.
- Unless expressly agreed otherwise with the customer in writing, CPS provides the customer with free technical support. Support is provided on working days via e-mail or telephone during normal office hours. CPS does not provide direct support for the customer’s customers unless otherwise agreed in writing.
- CPS guarantees 99% availability of its servers on an annual average. This does not include times when the server cannot be reached due to technical or other problems which are beyond the control of CPS (force majeure, fault of third parties, etc.). CPS can restrict access to the services if the security of the network operation, the maintenance of the network integrity, in particular the avoidance of serious disruptions to the network, the software or stored data require this.
§7 Liability and warranty
- CPS is only liable for intent and gross negligence, but for simple negligence only in the event of a breach of material contractual obligations. The customer’s claims for compensation are limited to the amount of the order value. This also applies to fault on the part of vicarious agents or legal representatives of CPS.
- Liability for all other damages, in particular consequential damages, indirect damages or loss of profit, is excluded.
- Unless otherwise stated in this contract, further claims by the customer are excluded, regardless of the legal grounds. CPS is therefore not liable for damage that has not occurred to the delivery item itself; in particular, CPS is not liable for loss of profit or for other financial losses of the customer.
- The customer must notify CPS of obvious defects in writing by fax or letter post immediately, but at the latest within two weeks of delivery. Defects that cannot be discovered within this period, even after careful inspection, must be reported to CPS in writing immediately after discovery.
- CPS points out that, according to the current state of the art, it is not possible to create hardware and software in such a way that it works error-free in all application combinations or can be protected against manipulation by third parties. CPS does not guarantee that the hardware and software used or provided by CPS fulfils the customer’s requirements, is suitable for certain applications, or that it is free of crashes, errors and viruses. CPS only warrants to the customer that the hardware and software used or provided by CPS will essentially function in accordance with the manufacturer’s specifications at the time of delivery, under normal operating conditions and with normal maintenance. CPS does not assume any warranty for known defects on the part of the manufacturer.
- CPS can initially provide a guarantee by rectifying the defect – twice or three times if necessary. If this rectification of a not insignificant defect finally fails or is unreasonable, the customer has the right to reduce the remuneration appropriately or to withdraw from the contract. The assignment of these claims of the customer according to §§ 434 ff. BGB is excluded.
- CPS is not responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for CPS (this includes in particular strikes, lockouts, official orders, etc., even if they occur at a supplier or sub-supplier), even in the case of bindingly agreed deadlines and dates. In this case, CPS is entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled. If the hindrance lasts longer than 3 months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if CPS is released from its obligation, the customer cannot derive any claims for damages against CPS from this, but only if CPS has informed the customer immediately of the reasons for the hindrance.
- If individual or several services of CPS are not available due to technical problems, the customer is obliged to inform CPS immediately. CPS guarantees to begin rectifying the fault within a response time of 24 hours. The fault will be rectified as quickly as possible, at the latest within three working days of the start of fault rectification. Further claims are excluded to the extent permitted by law.
- The customer undertakes to indemnify CPS and its vicarious agents or legal representatives internally against all possible claims by third parties which are based on unlawful actions by the customer or errors in the content of the information provided by the customer. In particular, this obligation also includes third-party claims and any legal defence costs resulting from the customer’s breach of one or more points of this contract.
- The customer assures that the domain names applied for and their use do not infringe the rights of third parties. This applies in particular to trade mark, copyright, data protection and competition law infringements.
- The customer must accept a new programme / development status as part of the warranty, unless this leads to unreasonable adaptation and conversion problems for the customer.
- Insofar as the liability of CPS is excluded or limited as a result of the above provisions and other clauses contained in this contract, this also applies to the personal liability of employees, representatives and vicarious agents. The limitations of liability do not apply if the cause of the damage is based on intent or gross negligence or if there is personal injury. They also do not apply if the customer asserts claims under §§ 1, 4 of the Product Liability Act. If CPS negligently breaches an essential contractual obligation, the obligation to pay compensation for material damage is limited to the typically occurring damage.
§8 Internet domains and name servers
- CPS provides the service package at the customer’s request. When the customer orders the service package, CPS confirms the order. This service package only becomes part of the contract upon confirmation by CPS.
- CPS provides the customer with the Internet domains required by him in accordance with the allocation guidelines of the respective responsible NIC. There is no entitlement to the delegation of a specific domain by CPS and/or the responsible NIC. The conditions of the respective registry apply. The customer is obliged to comply with the current registration guidelines or registration conditions of the NICs concerned. The customer shall ensure that all orders from domain holders are made with knowledge of and in recognition of these guidelines and conditions and the agreements made in this contract. The respective terms and conditions are available on the CPS website. The language of the terms and conditions may differ from the contract language and may be written in the respective national language.
- The TLDs that can be registered and their fees due as well as the fees due for the use of name servers are regulated in the Annex (Annex A) to this contract.
- The customer is granted the right to resell CPS products in Germany and throughout the world under the terms of this contract. The prices can be freely set by the customer. There is no territorial protection. Rather, CPS is also authorised to use other resellers.
- The customer resells the domain names registered with CPS and the name server services used to its customers in its own name and for its own account, i.e. no legal relationships exist or arise between CPS and the customer’s customers.
- The domains are registered either in the customer’s name or in the name of the customer’s customer, but in no case in the name of CPS. The customer or his customer therefore concludes the registration contract directly with the responsible NIC.
- Since the registration of the requested domains is the sole responsibility of the responsible NICs and CPS has no influence on this, CPS cannot guarantee a specific time frame for the registration. However, when using the automated interfaces of CPS, the orders are processed immediately.
- If the order for the administration of a domain is cancelled or ends due to expiry (e.g. due to termination of the framework agreement) or for other reasons, the domain can be deleted if the customer does not submit a transfer request to another provider in good time before the end of the registration period. If the customer does not submit such a transfer request in good time or if the customer can no longer be contacted by CPS, CPS is also entitled to ask the domain holder whether further registration of the domain or a change of provider is desired instead of deleting the domain.
- If the customer is in arrears with the payment of due fees after termination of the framework agreement or if the customer can no longer be contacted by CPS, CPS is authorised to delete domains immediately even before the expiry of the respective registration period or to transfer them to the administration of the respective NIC or to ask the domain holder whether a further extension of the domains or a change of provider is desired.
- The customer bears full responsibility for the correctness of domain orders. This applies equally to incoming transfers (TRANSFER) (transfer-in, i.e. transfers of domains under the administration of another provider to CPS), outgoing transfers (TRANSFER) (transfer-out, i.e. transfers of domains under the administration of CPS to another provider) and registrations (CREATE), changes (MODIFY) and deletions (DELETE). CPS is authorised, but not obliged, to carry out domain orders without CPS having a direct declaration of consent from the domain holder. The customer hereby assures that when placing a domain order with CPS he always acts in the name and on behalf of the (current) domain holder or Admin-C according to the WHOIS. The customer further assures that he has the required written consent of the domain holder or Admin-C according to WHOIS at this time. CPS can request this written consent from the customer at any time with a response period of 24 hours.
- If CPS has received an application from another provider to take over a domain (transfer-out), this will be forwarded to the customer with a request for approval or rejection. CPS is authorised, and in some cases also obliged due to the provisions of NICs, to approve the request even if only the consent of the domain holder or Admin-C according to the WHOIS is available. The customer will be informed immediately of the authorisation.
§9 SSL certificates and security products
- CPS provides the service package at the customer’s request. When the customer orders the service package, CPS confirms the order. This service package only becomes part of the contract upon confirmation by CPS.
- CPS provides the customer with the SSL certificates and security products required by him in accordance with the allocation guidelines of the CA responsible in each case. There is no entitlement to the allocation of a specific product by CPS and/or the responsible CA. The conditions of the respective issuing authority apply. The customer is obliged to comply with the current guidelines of the relevant CAs. The customer shall ensure that all orders placed by certificate holders are carried out with knowledge of and in recognition of these guidelines and conditions as well as the agreements made in this contract. The respective terms and conditions are available on the CPS website. The language of the terms and conditions may differ from the contract language and may be written in the respective national language.
- The available SSL certificates and security products and the fees due for them are set out in the Annex (Annex A) to this contract.
- The customer is granted the right to resell CPS products in Germany and throughout the world under the terms of this contract. The prices can be freely set by the customer. There is no territorial protection. Rather, CPS is also authorised to use other resellers.
- The customer resells the SSL certificates and security products purchased from CPS to its customers in its own name and for its own account, i.e. no legal relationships exist or arise between CPS and the customer’s customers.
- Since the issuance of the requested SSL certificates and security products is the sole responsibility of the responsible CAs and CPS has no influence on this, CPS cannot guarantee a specific time frame for the issuance. However, when using the automated interfaces of CPS, the orders are processed immediately.
§10 Terms of contract
- CPS will only act on the basis of this contract. Counter-confirmations by the customer with reference to his general terms and conditions are hereby rejected.
- This contract is concluded with the declaration of acceptance (signing of the contract) by CPS or the use of the service by the customer after the contractual partner has legitimised itself as an entrepreneur within the meaning of the German Civil Code (BGB) by means of a business registration or extract from the commercial register and is concluded for the minimum term specified in the contract.
- In the event of a breach of one or more points of this contract, CPS is entitled immediately and without notice to immediately block individual or all functions and / or accesses, also in order to avert any further even remotely threatening damage from the contracting parties.
- CPS may make changes to the contractual terms and conditions at any time, insofar as these become necessary due to changed circumstances and are reasonable for the customer. CPS will inform the customer of such changes in writing or electronically. If the customer does not object to the changes within 14 days, the changes are deemed to have been accepted. The objection must be made in writing.
- CPS provides the option of automatic management of many services (e.g. via a web interface). After conclusion of the contract, the customer will receive in writing or electronically all the necessary information for using these interfaces.
- The right of cancellation does not apply if CPS begins to provide the service after the contractually agreed start time or if the customer actively uses the service.
§11 Communication
- CPS will contact the customer using the data specified in Annex B of the contract. The customer assures that the data provided by him is correct and complete. The customer undertakes to inform CPS immediately of any changes to the data provided and to reconfirm the current accuracy within fourteen days of receipt upon request from CPS. This applies in particular to the customer’s name, postal address, e-mail address, telephone and fax number.
- Contact and summonable address of CPS:
Address:
CPS-Datensysteme GmbH
Managing Director: Felix Weigand
Gilgenborn 44
56179 Vallendar
Germany (DE)
E-Mail: de.info@cps-datensysteme.de
Telefon:+49 (0) 261 500 810 81
Telefax: +49 (0) 261 500 810 91
- All declarations from CPS can be sent to the customer electronically. This also applies to invoices within the scope of the contractual relationship.
§12 Cancellation and its consequences
- The cancellation must be made in writing, at the latest by the 3rd day of a month, to take effect from the 1st of the following month.
- The mutual right to extraordinary cancellation remains unaffected by the contractual provisions on ordinary cancellation.
- CPS is entitled to extraordinary cancellation in particular if
- the customer is in arrears with one or more payments even 14 days after the second request for payment;
- insolvency or composition proceedings have been applied for against the customer’s assets, such proceedings have been opened or the opening of such proceedings has been rejected for lack of assets;
- the customer breaches one or more points of this contract;
- the customer objects to an amendment to the contract;
- another company takes over the activities of CPS and offers the customer a contract corresponding to this contract.
- The cancellation of the framework agreement does not affect its validity for the rights and obligations of the contracting parties arising from individual orders.
- After termination of the framework agreement, there is no further automatic renewal of the orders.
- Even if the order is terminated prematurely, the customer shall owe the full fee for the contractually agreed period.
§13 Data protection
- CPS will comply with the relevant statutory provisions when handling personal data. The details on the handling of personal data can be found in the Appendix (Appendix D).
- CPS draws the customer’s attention to the fact that personal data and other information relating to his usage behaviour will be stored by CPS for the duration of the contractual relationship, insofar as this is necessary to fulfil the purpose of the contract, in particular for billing purposes, or as provided for by the various storage periods stipulated by law. The customer agrees to the storage. Once the respective purpose has ceased to apply or these periods have expired, the corresponding data will be routinely deleted in accordance with the statutory provisions.
- CPS also processes and uses the collected inventory data to advise its customers, for advertising and market research for its own purposes and to customise its services. The customer agrees that CPS may send him contract-related information (e.g. contract amendments, invoices etc.) by email. Irrespective of this, the customer agrees that CPS may send emails to the customer’s address for information and marketing purposes; the customer may object to this.
- CPS undertakes to provide the customer with complete and free information about the stored data at any time upon request, insofar as it concerns the customer. CPS will not forward this data or the content of the customer’s private messages to third parties without the customer’s consent. This only does not apply insofar as CPS is legally obliged to disclose such data to third parties, in particular government agencies, or insofar as internationally recognised technical standards provide for this. Within the scope of the registration, administration and application procedures for domain names and SSL certificates, this also includes the transmission to third parties and the entry of data in freely accessible, so-called “WHOIS” databases.
- CPS expressly draws the customer’s attention to the fact that data protection for data transmissions in open networks such as the Internet cannot be fully guaranteed according to the current state of the art. Other participants on the Internet may also be technically capable of interfering with network security without authorisation and controlling message traffic. The customer is therefore responsible for the security of the data he transmits to the Internet.
- CPS is authorised to obtain information from credit agencies as part of the credit check. CPS is also authorised to transmit the customer’s data required for debt collection to the credit agencies due to improper contract processing (e.g. dunning notice applied for in the case of an undisputed claim, enforcement order issued, enforcement measures). If corresponding data from other customer relationships is received by the credit agency during the term of this contract, CPS may also receive information about this. The respective data transmission and storage only takes place insofar as it is necessary to safeguard the legitimate interests of CPS, a contractual partner of the credit agency or the general public and the customer’s legitimate interests are not impaired as a result.
§14 Final clause and responsibility
- All amendments and ancillary agreements to this contract as well as cancellations must be made in writing (§ 126 BGB). This also applies to the waiver of the written form clause.
- Should a provision of this contract or only a part of a provision of this contract be or become invalid or should the contract contain a loophole that needs to be filled, this shall not affect the validity of the remaining provisions. The invalid provision or the loophole shall be replaced by a provision that comes as close as possible to the economic purpose of the agreement.
- The courts with local jurisdiction for the registered office of CPS have exclusive jurisdiction, insofar as legally permissible. CPS may also take legal action against the customer at the customer’s place of residence or business.
- The German text of this contract is binding.