Terms and Conditions
Last Updated: 5/29/2013
Cloudnode, a company of Microlog GmbH, (herein referred to as "Cloudnode") agrees to provide services to the Subscriber, subject to the following Terms and Conditions. Use of Cloudnode's service constitutes acceptance and agreement to Cloudnode's Terms and Conditions.
- Cloudnode delivers all its services exclusively based on these General Terms and Conditions (GTC). This especially holds true when a client makes use of general terms and conditions and these contain provisions that are contrary to or deviating from the present General Terms and Conditions. The present General Terms and Conditions shall also apply when Cloudnode executes an order without reservation despite knowledge of client conditions that are contrary to or deviating from the present General Terms and Conditions.
- Cloudnode may change the present General Terms and Conditions with due notice. Unless the client objects to the modification within a time period specified by Cloudnode, the modification shall be deemed as approved. The client will be informed by Cloudnode's notice of modification that the modification will become valid should the client not object within the specified time period.
- The full wording of the General Terms and Conditions may be made available by Cloudnode through a web link where the full wording may be accessed for download.
Beginning of Service
- The valid conclusion of a service agreement presupposes the transmission of complete and correct information.
- The service agreement will be concluded by the activation of the login data.
- The scope of the individual services is determined by the service description applicable at the time of the order.
- All servers in the Cloudnode platform are connected to the Internet by intricate system architecture. In- and outgoing data traffic is transmitted via routers, load balancers, switches etc., each of which has a specified maximum data throughput rate. There is no direct connection of individual servers to Internet transfer points. Therefore, for technical reasons, traffic capacities for server groups are limited at certain points. As a result of increased data traffic from or to individual servers, maximum data throughput rate of the respective individual server port may not be available for these servers and other servers interconnected to them. In these cases, the data throughput rate will be distributed among interconnected servers. The same shall apply to websites that share a common server. In the event of increased traffic, data throughput capacities will be distributed among the interconnected websites.
- Cloudnode server availability and data flow up to the Internet transfer point (backbone) shall be a minimum yearly average of 99.5%. Cloudnode informs the client that there may be instances of service restrictions or reductions that cannot be controlled by Cloudnode. This shall particularly include third party actions that are not covered by a Cloudnode mandate, technical conditions of the Internet outside of Cloudnode's control and force majeure. Likewise, the client's hard- and software and his or her technical infrastructure may have an impact on Cloudnode's services. If such circumstances should have an impact on the availability of functionality of Cloudnode's services, Cloudnode's services shall nevertheless be deemed to be in conformity with the service agreement.
- Cloudnode regularly performs systems maintenance work in order to assure network security, to maintain network integrity and services interoperability and to secure data protection. For this purpose and allowing for client interests, Cloudnode may temporarily interrupt or restrict its services, if objective reasons justify such measures. If possible, Cloudnode will execute maintenance work at times where Internet use is low. Should a temporary interruption or restriction become necessary for a longer time period, Cloudnode shall priorly inform the client about the nature, scope and duration of the impairment, as far as this is objectively possible in the circumstances and provided that informing the client would not delay the trouble-shooting process required to remedy interruptions that have already taken place.
- Cloudnode may choose its technical infrastructure at its own discretion. Cloudnode may change the applied infrastructure, backbones, third party supplies and hard- or software at any time. The use of specific infrastructure, backbones, third party supplies and hard- or software shall only be part of the service agreement if this has been pointed out in the service description.
- Cloudnode may modify its services if this is reasonably acceptable for the client in consideration of Cloudnode's interests.
- In any case, Cloudnode may modify its services with due notice. Unless the client objects to the modification within a reasonable time period specified by Cloudnode, the modification shall become valid. The client will be informed by Cloudnode's modification notice that the modification will become valid should the client have no objection.
- To the extent that fixed IP addresses are made available, Cloudnode reserves the right to change the IP address allocated to the client if this is required for technical or legal reasons.
- If necessary and reasonable, the client cooperates in the change, e. g. by re-entering his or her access data or by simple adjustments of his or her systems.
- Cloudnode reserves the right to limit the size of in- and outgoing emails to an extent that is reasonable for the client. Cloudnode is entitled to delete email messages of the provided accounts a) after they have been retrieved by the client, b) after they have been forwarded according to the client's instruction, and c) after they have been stored for 60 days. These provisions concerning emails shall not apply for dedicated or virtual servers where the client itself operates the email server.
- The client shall provide necessary information in complete and correct detail and immediately communicate any modifications. This is particularly the case with respect to address, bank details, email address and credit cards.
- Cloudnode may send information and declarations regarding the service agreement to the client's email address. The client shall regularly check the email address serving as contact address for Cloudnode.
- The client shall set up his or her systems and programs in such a way so as not to impede security, integrity and availability of systems used by Cloudnode for the performance of its services. Cloudnode is entitled to suspend services if systems act or react in deviation from normal operating behavior resulting in the impediment of security, integrity or availability of the Cloudnode server systems.
- The client shall promptly change the allocated passwords. He or she shall carefully administer passwords and other access data and not disclose them to others. He or she shall also pay for services that third parties use or order with his or her access data or passwords, if he or she is responsible for such use or order.
- The client shall make backup copies of all data that is stored at Cloudnode, to be stored on data carriers that are not situated at Cloudnode. In the event of data loss, the client shall reload the affected data onto the Cloudnode server free of charge.
Client Responsibility and code of conduct
- The client is responsible to ensure that his or her domain(s) and the corresponding content and any other stored data does not infringe on legal provisions or third party rights. Cloudnode hereby informs the client that - particularly for international domains - the laws of third countries may apply.
- The client shall not provide domains or content that are of an extremist (particularly right-wing extremist) nature or that contain pornographic or commercially oriented erotic content. This shall also apply if such content is made available through hyperlinks or other links that the client creates to third party websites.
- The sending of spam is not permitted. This particularly includes the sending of unlawful and unsolicited promotional material to third parties. Furthermore, with respect to the sending of emails, it is not permitted to state incorrect sender details or to otherwise conceal the sender's identity. As regards commercial communication, the client shall indicate the commercial nature through corresponding email design.
- The client shall not surrender the use of dedicated or virtual servers available to third parties, neither in whole nor in part. Cloudnode may agree to a surrender of use. A prerequisite for this is that a separate reseller agreement is concluded. The surrender of use for free (whether in whole or in part) to anonymous third parties shall in any event be prohibited.
- The client is responsible to ensure that the limited volumes of inclusive services are not to be exceeded, unless this was agreed upon in the service agreement. Should Cloudnode become aware of the fact that the traffic volume of the client of a Web Hosting package exceeds the stipulated monthly volume by more than 10%, then Cloudnode will inform the client accordingly. In such cases, Cloudnode may offer the client a service agreement upgrade to the next level (e. g. a superior Web Hosting package) with a corresponding greater traffic volume. Should the client refuse an offer to upgrade the service agreement to the next level, Cloudnode is entitled to terminate the service agreement with two weeks notice.
- Alternatively, Cloudnode has an extraordinary right to terminate the service agreement with three weeks notice in the event of traffic excess pursuant to 5.4.
- In the event of incorrectness of the data that have to be transmitted for a domain pursuant to the applicable registration terms and if Cloudnode is not able to contact the client through the transmitted data, Cloudnode is entitled to delete the domain.
Cloudnode Measures on Infringements of Rights and Threats
- Should third parties furnish prima facie evidence that the content of a website, any other data stored on Cloudnode servers or a domain itself constitutes an infringement of their rights, or if it is probable, based on objective grounds, that a domain or content infringes on legal provisions, Cloudnode is entitled to block the website or server as long as the infringement of rights or the dispute with the third party regarding the infringement of rights persists.
- If the alleged infringement of rights is caused by a domain, Cloudnode may take measures to prevent access to the domain. Should the infringement of rights caused by a domain appear certain based on objective grounds, Cloudnode is entitled to terminate the service agreement without notice.
- In the event of extremist, pornographic or commercially oriented erotic content, Cloudnode is entitled to terminate the service agreement without notice in place of blocking the domain.
- Should the client send spam mail pursuant to 5.3, Cloudnode is entitled to temporarily block the client's email accounts on the email server. Should the server concerned be a dedicated or virtual server, Cloudnode may temporarily block the entire server in this case.
- Should spam mail as mentioned in 5.3 contain a URL or a hyperlink that is administered by Cloudnode or the content of which is stored in the Cloudnode Computing Center, Cloudnode is entitled to temporarily block the domain or content.
- Based on objective criteria, Cloudnode is entitled to refuse emails directed to their clients, if there is sufficient evidence to assume that an email contains harmful software (viruses, worms or Trojans etc.), the sender details are incorrect or concealed or the email contains unsolicited or concealed commercial communication.
- If a client puts the security, integrity and availability of networks, servers, software or data at risk through its own dedicated or virtual servers, or if Cloudnode suspects so based on objective grounds, Cloudnode may temporarily block the server concerned. For the sake of clarification, this shall also apply for what is known as "denial of service attacks" (DoS Attacks) which the client launches through its server. In the event of a wilful act on the part of the client, Cloudnode shall be entitled to terminate the relationship without notice.
- If an application puts the security, integrity and availability of networks, servers, software or data at risk without the client being responsible for this, or if Cloudnode suspects so based on objective grounds, Cloudnode may temporarily block the server concerned. For the sake of clarification, this provision shall also apply for DoS Attacks for which the client's server is used by third parties. Cloudnode hereby points out that it is often due to a client's conduct on third parties if it becomes the target of a DoS Attack. If a server is repeatedly affected by DoS Attacks and further repetition is to be expected, while there is no possibility reasonably available to Cloudnode to prevent the expected future DoS Attacks or their effects on other systems, Cloudnode may terminate the relationship without notice after issuing a written warning.
- If services are suspended due to the foregoing reasons, Cloudnode's payment claims shall persist unaffected thereof.
- Fixed fees shall be paid in advance. Usage fees are due and payable at the end of the respective billing period. Usage fees are calculated with reference to the current price list that Cloudnode establishes at its reasonably exercised discretion. The client shall effect payment through credit card. The client authorizes Cloudnode to collect all fees resulting from the service agreement by charging his credit card. Prices exclude VAT, unless otherwise stated.
- Cloudnode shall make an electronic invoice available on its Customer Service page for each payment transaction.
- Cloudnode may modify prices at the beginning of the next term with due notice of a minimum of one month. Unless the client objects to the modification within a reasonable time period specified by Cloudnode, the modification shall be deemed as approved. The client will be informed by Cloudnode's modification notice that the modification will become valid should the client have no objection.
- In the event of changes to domain registrar fees, Cloudnode may adjust its prices accordingly. Should the adjustment be unreasonable, the client is entitled to terminate the service agreement as of the effective date of the price increase.
- The client may only offset against Cloudnode's claims if the client's counterclaims have not been contested or are recognized by declaratory judgment.
- Should the client be in default of payment, Cloudnode is entitled to suspend all services. Cloudnode's payment claims shall persist unaffected hereof. Should Cloudnode suspend a service with good reason because of default in payment, Cloudnode is entitled to charge an administrative fee of €10.00 for the resumption of service. We reserve the client`s right to prove, that no damage has occurred or that the damage is considerably lower.
- In the event of the client's default in payment of a significant part of the fees of two subsequent months or a default of payment for a period of more than two months for an amount corresponding to a monthly fee, Cloudnode is entitled to terminate the service agreement without notice for good cause. Cloudnode is also particularly entitled to termination without notice for good cause, if an insolvency petition has been filed against the client, the client's property has been subject to insolvency proceedings or a petition to open insolvency proceedings has been dismissed due to a lack of assets.
- In the event of default in payment, Cloudnode is entitled to levy reminder charges amounting to €10.00 each for the first and second reminder and for each illegitimate charge back. We reserve the client`s right to prove, that no damage has occurred or that the damage is considerably lower.
- In the event of a default in payment, Cloudnode is entitled to levy default interest.
With respect to all claims that arise out of the service agreement, Cloudnode shall only be liable according to the following conditions:
- full liability for intentional damage and death or bodily harm and/or injuries to health; if the claim is based on Product Liability the extent of liability is determined by the national transformation of the Product Liability Directive, 85/374/EEC;
- full liability for damage due to gross negligence of legal representatives, executives or persons employed in the performance of obligations;
- if the client is an entrepreneur, a public law entity or a public sector special fund, Cloudnode's liability for damage due to gross negligence of ordinary employees is restricted to the damage typically foreseeable at conclusion of the service agreement; Cloudnode's liability is restricted to the overall sum of the fees that Cloudnode has received from the client in the context of the specific service agreement during the last two years preceding the occurrence of the action causing the damage; the liability for gross negligence towards consumers is unlimited;
- in the event of negligent infringement of an obligation essential for the service agreement, liability is restricted to the damage that was typically foreseeable at conclusion of the service agreement;
- in the event of ordinary negligence, Cloudnode's liability is restricted to the overall sum of the fees that Cloudnode has received from the client in the context of the specific service agreement during the last two years preceding the occurrence of the action causing the damage; liability for indirect damage due to ordinary negligence is excluded.
Except for claims for intentional damage or damage due to gross neglicence or death or bodily harm and/or injuries to health, all damage claims are subject to a limitation period of one year from the date of knowledge of the action causing the damage.
Use of Data
Intellectual Property Rights
- Cloudnode grants the client a non-exclusive right of use of the provided Cloudnode or third party software, programs and scripts limited to the term of the respective service agreement. The granting of a right of use to third parties is not permitted. Particularly the sale of such rights is not permitted. The client shall delete and discontinue the use of all copies of the provided software upon termination of the service agreement.
- In other respects, the licensing terms of the respective manufacturer shall apply.
- Unless otherwise stated in the concrete offer, the service agreement shall terminate on expiry of the service agreement period stated in the offer. The customer can extend the service agreement by one period respectively. This extension shall be valid once payment for the next period has been made.
- The service agreement can be terminated before the end of the respective period.
- The client shall compensate Cloudnode for any damage resulting from breach of the foregoing provisions to the extent that it is responsible for that. Damage compensation shall also include the reasonable costs of any legal defence that may become necessary. Cloudnode shall inform the client without undue delay if itself or any third parties assert such claims and shall give the client the opportunity to state its view.
Place of Jurisdiction, applicable law
- Unless the client is a consumer exclusive place of jurisdiction for all disputes arising out of or on the occasion of this service agreement is Borchen (Germany). For all claims whatsoever of non consumer clients arising out of or on the occasion of this service agreement, the law of the Federal Republic of Germany under exclusion of the Uniform UN Sales Law (CISG) shall apply.