Version 5.0 of 13 March 2013*
- For informational purpose only -
- Customers define the contractual partners of CPS.
- Third parties define all persons (also entities) with the exception of the contract parties themselves, also vicarious agents of the contract parties, with exclusive exception of bureaus and authorities, legal representatives, tax consultants, accountants and notary publics and other professionals who are by law subject to professional discretion.
- Domain owners define persons substantially entitled to a domain. Alternatively, this term can stand for a person who would like to obtain this status through a respective contract.
- Certificate owners define the owners of digital certificates. Alternatively, this term can stand for a person who would like to obtain this status through a respective contract.
- TLD (Top Level Domain) defines the top level of the domain hierarchy.
- NIC (Network Information Centre) defines an organisation which occupies the central management of one or more TLDs and sets respective contractual terms for these.
- WHOIS defines the public databanks of the registrars which provide information regarding owner data and technical details of a domain.
- CA, Trust Center (Certification Authority) defines a certification service provider who issues digital certificates.
Both contractual parties are obligated not to impart or otherwise make use of any disclosed information associated with this contract or its fulfilment which are clearly confident as well as mutually disclosed company-internal information to third parties and are to ensure that this obligation is also upheld by persons or companies they employ. All business-related, operational, organisational and technical knowledge, procedures and information is regarded as company-internal which according to the identifiable intention of the party are only accessible to a specific group of persons and should not become known to the general public, therefore also all access data made available to the customer and thus in itself the access to the platforms of CPS. The obligation of nondisclosure still persists after expiration or cancellation of the contractual relationship.
§3 Copyrights, Software Licences
- Provided that CPS makes software available to the customer (e. g. registration software), the customer is granted a non-exclusive right of use for the duration of the contractual time period. Furthermore the licence regulations of the respective programmers apply.
- As soon as the customer’s right of use expires (e. g. by cancellation of the contract), the customer is to return all data media including possible copies as well as all written documentations and advertising aids to CPS. The customer is then obligated to immediately delete any form of the software from his/her or rented computers provided that he/she is not legally obligated to a prolonged storage of the data.
§4 Customer Obligations
- The customer is obligated not to misuse the respective services of CPS and is to refrain from unlawful acts.
- The customer is to ensure the fulfilment of the legal regulations and official requirements as far as these are presently required or become required in the future to participate in data exchange.
- The customer commits to immediately informing CPS of cognizable deficiencies or damages (error notification) and to implement all actions which enable an identification of the deficiencies or damages and their causes or facilitate or quicken the elimination of the error.
- When designing his/her Internet presence and/or the development of software with access to the CPS systems, the customer commits to refraining from procedures which cause an excessive utilisation of CPS facilities. CPS can exclude Internet presences or IP-addresses with these procedures from any kind of access until the customer has eliminated/deactivated these procedures.
- Furthermore the customer is obligated not to apply the resources made available by CPS for the following activities:
- unauthorised infiltration of external computer systems (hacking);
- disablement of external computer systems due to the sending/forwarding of data streams and/or emails (spam/mail-bombing),
- search for open ports to computer systems (port scanning);
- sending of emails to third parties for advertising purposes provided that he/she cannot assume that the recipient has an interest therein (e. g. after request or prior business relations);
- forging of IP-addresses, mail and news headers as well as the circulation of viruses.
§5 Fees and Payment
- CPS receives the fees which are stipulated in the attachment (appendix A) to this contract.
- Invoices are issued monthly at the beginning of each month; the invoiced fees are due net immediately.
- Provided that the customer does not participate in the direct debiting procedure or a comparable procedure in regard to technical processing, the invoice amount must be credited to the account of CPS indicated on the invoice on the fourteenth day as of invoice date at the latest. If this time limit expires without effect, the customer is in default.
- The customer must ensure that his/her account has sufficient coverage at the time of direct debiting. Should costs accrue for the agent due to payment refusal by the institute servicing the account then the customer will immediately refund these upon request.
- Objections to invoiced deliveries and services must be disclosed to CPS in the written form via fax or letter post within 14 days as of invoice date. After expiration of this time limit the amounts are regarded as accepted.
- In the case of delayed payment by the customer, CPS has the right to charge interest as of the respective time period amounting to 8 % p.a. higher than the respective base interest rate of the European Central Bank as minimum damage caused by the delay. With appropriate verification, the assertion of extensive damages caused by the delay is thereby not excluded, just as the customer is at liberty to verify that more extensive, lesser or even no damage has occurred.
- Should the customer fall behind with one or more payments, then he/she will be informed of this by CPS. Should a balancing of the outstanding items not be achieved within fourteen days after delivery of this payment reminder, then CPS is entitled to disabling access to the platforms of CPS according to §10 clause 3. Should the customer also remain in default fourteen days after a further payment request, then CPS is entitled, according to §12 clause 3, to cancel the contract without notice and with it the discontinuation of all deliveries and services.
- Until complete payment of the purchase price has been effected, CPS retains the title to deliveries and services. Should the customer fall behind in payment, CPS can, irrespective of other rights, redeem the delivered merchandise to protect its rights if CPS has announced this to the customer and has set an appropriate respite.
- The customer can only set off against claims of CPS with indisputable, explicitly acknowledged or legally binding asserted claims. The customer is only entitled to the assertion of a right of retention in the case of counterclaims resulting from this contract.
- The customer renounces his/her right of determination of performance and agrees to an offset according to §366 clause 2 German Civil Code.
§6 Service Obligations
- As far as the servers of CPS on which customer contents are stored require downtime which predictably makes access to these files and data by users impossible for longer than four hours, CPS will inform the customer of this at least 3 weekdays in advance via email.
- As far as CPS provides additional services free of charge, the customer has no claim for performance for its provision. CPS is entitled to discontinue, alter or only offer such services previously made available free of charge for a fee within a time limit of 24 hours. In this case CPS will inform the customer immediately.
- As far as not otherwise explicitly stipulated with the customer in the written form, CPS grants the customer technical support free of charge. The support is rendered weekdays via email or telephone during normal business hours. CPS does not render direct support for customers of the customers unless other agreements have been reached in the written form.
- CPS guarantees an accessibility of its servers to 99% in the annual mean. Excluded here from are times in which the server is not available do to technical or other problems which are not in the sphere of influence of CPS (force majeure, fault of third parties etc.). CPS can reduce the access to the services provided that the security of the net operation, the maintenance of the net integrity in particular the report of severe errors of the net, the software or stored data requires doing so.
§7 Liability and Guarantee
- CPS is only liable for intent and gross negligence, however in the case of minor negligence only for the breach of fundamental contractual obligations. The customer’s claims for compensation are limited to the extent of the contract value in regard to their amount. This also applies for defaults of vicarious agents or authorised representatives of CPS.
- Liability for all other damages in particular consequential damages, collateral damages or profit loss is excluded.
- Provided that nothing else results from this contract, advanced customer claims, no matter what the legal ground is, are excluded. CPS is therefore not liable for damages which were not caused to the delivery item itself; in particular CPS is not liable for lost profit or for other financial losses of the customer.
- The customer must immediately inform CPS of apparent deficiencies, at the latest however within two weeks after delivery in the written form via fax or letter post. Deficiencies which despite proper inspection cannot be detected within this time limit are to be notified immediately to CPS upon detection.
- CPS points out that according to the current state of technology it is not possible to develop hardware and software in such a manner which enables it to work error-free in all application combinations or can protect it from manipulation by third parties. CPS does not guarantee that the hardware and software used or made available by CPS complies with the customers requirements, is suitable for specific applications and furthermore that it is crash-, error- and virus-free. CPS only guarantees the customer that the hard- and software used and made available by CPS functions at the time of transfer, under normal operating conditions and with normal maintenance essentially according to the service description of the manufacturer. CPS grants absolutely no guarantee for known errors on the part of the manufacturer.
- Initially CPS can satisfy the guarantee by rectification of defects – if necessary multiple times. Should this rectification of a material deficiency ultimately fail or be unacceptable, then the customer has the right to reduce payment reasonably or to cancel the contract.
- CPS cannot be held responsible for delays in delivery or services due to force majeure and due to events which considerably complicate or make delivery impossible (meant are particularly strikes, lock outs, official rulings and so on even if they occur at a distributors or a preliminary distributors) even in the case of binding stipulated time limits and deadlines. In these cases CPS has the right to postpone the delivery or service for the duration of the hindrance plus an appropriate starting time or regarding the not yet fulfilled part, to partially or completely cancel the contract. If the hindrance lasts longer than 3 months, the customer has the right to cancel the contract in regard to the not yet fulfilled part after an appropriately set respite. Should the delivery time be prolonged or should CPS be released from its obligation, then the purchaser cannot derive damage claims against CPS herefrom; this however only if CPS has immediately informed the customer of the reasons for the hindrance.
- Should individual or several services of CPS not be available due to technical problems, then the customer is obligated to immediately inform CPS of this. CPS guarantees to begin with the elimination of the error within a reaction time of 24 hours. The elimination of the error is effected as quickly as possible, at the latest within three weekdays after error elimination has begun. Further claims are excluded as far as legally permitted.
- The customer is obligated to release CPS and its vicarious agents or legal representatives in the internal relationship of all possible claims from third parties which are based upon unlawful acts of the customer or errors in the contents of information provided by him/her. In particular this obligation also includes third party claims and possible costs for legal defence which result from the customer’s breach of one or several items of this contract.
- The customer assures the domain name he/she requested and its use does not violate the rights of third parties. This applies in particular to the violation of trademark, copyright, data privacy and competition laws.
- In line with the guarantee the customer must, if necessary accept a new programme/development standard unless this leads to inappropriate adjustment and reorganisation problems for him/her.
- As far as liability is excluded or limited by CPS and otherwise contained clauses in this contract, this also applies for the personal liability of employees, representatives and vicarious agents. The limitation of liability does not apply as far as the cause of damage is based on intent or gross negligence or a personal injury is existent. Furthermore they do not apply, if the customer asserts claims from §§1.4 of the Product Liability Act. As far as CPS negligently violates a fundamental contractual obligation, the duty of replacement for damages to property is limited to typically caused damage.
§8 Internet Domains and Nameserver
- CPS holds the service package ready upon inquiry of the customer. When the customer orders the service package, CPS confirms the order. Only after confirmation by CPS does this service package become an integral part of the contract.
- CPS supplies the customer with the Internet domains he/she requires according to the awarding regulations of each responsible network information centre, hereinafter called NIC. A right to the delegation of a specific domain by CPS and/or the responsible NIC does not exist. The regulations of the respective awarding authorities apply. The customer is obligated to adhere to the current registration guidelines or rather the registration requirements of each concerned NIC. The customer ensures that all orders of the domain owner are effected with knowledge and according to recognition of these guidelines and requirements as well as according to the agreements made in this contract. The respective conditions are accessible via the Internet pages of CPS. The language of the conditions can differ from the contractual language and be composed in the respective national language.
- The registerable TLDs and their due fees as well as the due fees for the use of name servers are regulated in the attachment (appendix A) of this contract.
- The customer is granted the right of resale of products from the CPS Company in Germany and worldwide according to the requirements of the existing contract. The prices can be configured freely by the customer. In doing so there is no territory protection given. In fact CPS has the right to appoint other resellers.
- The customer resells the domain names and used server name services which are registered with CPS on his/her own behalf and to his/her own account to the customer, i.e. absolutely no legal contract exists or will develop between CPS and the customer of the customer.
- The domains are registered either in the customers name or his/her customers name depending on his/her choice but in no case in the name of CPS. The customer or his/her customer therefore concludes the registration contract directly with the responsible NIC.
- Due to the fact that the registration of the domain applied for is solely incumbent on the responsible NIC and CPS has absolutely no influence upon this, CPS cannot guarantee any specific time-frame for the registration. When using the automatic interfaces of CPS however, the orders are processed immediately.
- Should the order for maintenance of a domain be cancelled or should it end due to expiration (e. g. due to the expiration of the outline contract) or due to other reasons, the domain can be deleted if the customer does not duly apply for a transfer application to another provider before expiration of the registration time period. Should the customer fail to duly apply for such a transfer application or is the customer no longer accessible to CPS, then instead of deletion CPS has the right to inquire with the domain owner if a further registration with the domain or rather a change of provider is desired.
- Should the customer fall behind in payment of due fees after cancellation of the outline contract or is the customer no longer available to CPS, then CPS is permitted to also immediately delete domains before expiration of the respective registration time period or to give the administration of the respective NIC or rather and/or to ask the domain owner if a further extension of the domain or rather a change in provider is desired.
- The customer bears full responsibility for the correctness of domain orders. This applies in equal measure for incoming transfers (transfer-in, i. e. transfer of domains to CPS which are under the administration of a different provider), for outgoing transfers (transfer-out i.e. transfers of domains to another provider which are under the administration of CPS) as well as for registrations (CREATE), alterations (MODIFY) and deletions (DELETE). CPS has the right but is not obligated to execute domain orders without CPS directly having the declaration of consent of the domain owner. The customer already currently assures that when placing an order for a domain he/she will always act on behalf of and by order of the (presently current) domain owner or rather Admin-C according to Whois regarding CPS. Furthermore the customer ensures that the required written consent of the domain owner or rather Admin-C according to Whois is available to him/her at this time period. CPS can request this written consent from the customer at anytime with a reaction time limit of 24 hours.
- Should a transfer application of another provider for the transfer of a domain (transfer-out) be available to CPS, then this will be forwarded to the customer with the request to accept or decline. CPS has the right and is partially obligated due to NIC regulations, to also grant the request if merely the acceptance of the domain owner or rather Admin-C according to Whois exists. The customer will be immediately informed of the acceptance.
§9 SSL-Certificates and Security Products
- Upon inquiry by the customer CPS holds the service package ready. When the customer orders the service package, CPS confirms the order. Only after confirmation by CPS does this service package become an integral part of the contract.
- CPS provides the customer with SSL-certificates and security products which he/she requires according to the awarding guidelines of each responsible trust centre (certification authority), hereinafter called CA. A right to the assignment of a specific product by CPS and/or the responsible CA does not exist. The regulations of the respective awarding authorities apply. The customer is obligated to adhere to all current conditions of the concerned awarding authority. The customer ensures that all orders of the certificate owners are effected with knowledge and according to recognition of these guidelines and requirements as well as according to the agreements made in this contract. The respective conditions are accessible via the Internet pages of CPS. The language of the conditions can differ from the contractual language and be composed in the respective national language.
- The available SSL-certificates and security products and the fees due for them are regulated in the attachment (appendix A) of this contract.
- The customer obtains the right of resale of products from the CPS Company in Germany and worldwide according to the conditions of the existing contract. The prices can be configurated freely by the customer. In doing so there is no territory protection given. In fact CPS has the right to appoint other resellers.
- The customer resells the SSL-certificates and security products purchased from CPS under his/her own name and to his/her own account, i. e. absolutely no legal contract exists or will develop between CPS and the customer of the customer.
- Because the issuing of the requested SSL-certificates and security products is solely incumbent upon the responsible CA and CPS has absolutely no influence on it, CPS cannot guarantee a specific time-frame for the issuing. However when using the automatic interfaces of CPS, the orders will be processed immediately.
§10 Contract Terms
- CPS will only act based on the existing contract. Contrary confirmations of the customer referring to his/her general terms and conditions are herewith contradicted.
- This contract is accomplished with the acceptance (signing of the contract) by CPS or with the usage of the service by the customer, after the contractual partner has been legitamated as an entrepreneur in terms of the German Civil Code by means of registering a business or a certificate of registration and is concluded for the minimum duration stipulated in the contract.
- In the case of violation of one or more of the items in this contract, CPS is entitled to the immediate disabling of individual or all functions and/or accesses without prior notice and delay, also in order to avert further possible, even remotely impending damage to the contractual parties.
- CPS is permitted to alter the contractual general terms at anytime provided that these become necessary due to altered circumstances and are reasonable for the customer. CPS will inform the customer of such alterations in the written form or electronically. Should the customer not object to the alterations within 14 days then the alterations are regarded as accepted. The objection must be effected in the written form.
- CPS provides the alternative of automatic administration for many services (e. g. via a web interface). After contract conclusion the customer will receive all necessary information for the use of these interfaces in the written form or electronically.
- Right of cancellation does not apply if CPS starts with the execution of the service at the contractually stipulated period of initiation or the customer actively makes use of the service.
- CPS will contact the customer according to the data indicated in attachment B of the contract. The customer assures that the data he/she provided is correct and complete. He/she is obligated to immediately inform CPS of respective alterations of the data indicated and upon a respective inquiry by CPS, to reconfirm the current accuracy within fourteen days as of receipt. This particularly applies to the customer's name, postal address, email address as well as the customer’s telephone and fax number.
- Contact and address of CPS at which documents can be served:
Managing Director: Felix Weigand
Telephone: +49 (0) 261 500 810 81
Fax: +49 (0) 261 500 810 91
- All declarations of CPS can be directed to the customer electronically. This also applies for invoices in line with the contractual relationship.
§12 Cancellation and its consequences
- Cancellation is to be effected in the written form on the third day of the month at the latest, in order to become effective as of the first of the following month.
- The mutual right of extraordinary notice of cancellation remains unaffected by the contractual regulations for a contractual notice of dismissal.
- In particular CPS is entitled to a right of extraordinary notice of cancellation if
- the customer falls behind with one or more payments even 14 days after the second request for payment;
- the proceedings for bankruptcy or composition for the assets of the customer have been applied for, such a proceeding has been established or the establishment of such a proceeding has been rejected due to the lack of coverage;
- the customer violates one or several articles of this contract;
- the customer objects to a contractual alteration;
- another company takes over the activities of CPS and offers the customer a contract corresponding to this contract.
- The cancellation of the outline contract does not affect its validity regarding the rights and obligations of the contractual parties deriving from individual orders.
- After cancellation of the outline contract a further automatic extension of the orders is not effected.
- Also in the case of premature cancellation of the order, the customer owes all fees for the contractually stipulated time period.
§13 Data Protection
- According to §33 German Data Protection Act, CPS points out to the customer that individual-related data and other information which affect their use are stored by CPS for the duration of the contractual relationship, as far as this is required for the fulfilment of the contractual purpose, in particular for invoicing purposes. The customer declares his/her acceptance to the storage.
- CPS also processes and uses the customer’s submitted stock data for consulting with their customers, for advertising and for market research for its own purposes and for the requirement-specific design of its services. The customer agrees to CPS sending him/her contract-related information (as for example contractual alterations, invoices etc.) via email. Independent hereof the customer agrees to CPS sending emails to the customer’s address for information and marketing purposes, the customer can object to this.
- CPS is obligated to inform the customer at any time upon request thoroughly and free of charge in regard to his/her stored data stock provided that it affects him/her. CPS will neither pass on this data nor the contents of private messages of the customer to third parties without his/her consent. This is only not applicable, if CPS is legally obligated to disclose such data to third parties in particular governmental authorities or as far as internationally acknowledged technical standards require doing so. This also includes the transmission to third parties and placement of the data in freely accessible so-called „Whois“ data banks within the registration, administration and application procedures for domain names and SSL certificates.
- CPS explicitly points out to the customer that data protection for data transmission in open nets such as the Internet cannot be completely guaranteed according to the current state of technology. Other participants in the Internet are also possibly technically able to execute unauthorised interference with the net security and to control communication. Therefore the customer takes full responsibility for the security of the data he/she transmits on the Internet.
- In line with credit assessment, CPS has the right to obtain information from economical credit agencies. Furthermore CPS has the right to convey customer data necessary for collection due to incorrect contract execution (e. g. submitted court order for undisputed claims, issued enforcement order, measures for compulsory enforcement) to economical credit agencies. As far as relevant data from other customer relationships accumulate at the credit agency during the duration of this contract, CPS can also obtain information in that matter. The respective data transmission and storage is only effected as far as it is required to attend to legitimate interests of CPS, a contractual partner of the credit agency or the general public and the customer’s legitimate interests are not affected in doing so.
§14 Final Clause and Jurisdiction
- All alterations and additional agreements to this contract as well as cancellations require the written form (§ 126 German Civil Code). This also applies for the waiving of the written form clause.
- Should a provision or even a part of a provision of this contract be ineffective or become ineffective or should the contract contain a gap which needs to be filled, then this does not affect the effectiveness of the rest of the provisions. A provision which comes close to the economical purpose of the contract will replace the ineffective provision or gap.
- As far as legally permissible, the local courts responsible for the registered office of CPS are solely competent. CPS can also take action against the customer at his/her place of residence or business.
- The German text of this contract binding.
* Old versions you will find under Services: dokuments