Terms and
Conditions of mashlab UG (limited liability)
15 December
2009
§1
Area
of Validity, Definitions
(1)
The
following Terms and Conditions are solely applicable to the business agreement
between mashlab UG (limited liability) (hereafter the “Provider”) and its users
(hereafter the “User(s)”) in the version valid on the effective date of the
agreement. Users’ terms and
conditions deviating from these T&C are not recognized unless specifically
accepted in writing.
(2)
The
User is a consumer unless the purpose of the agreed services can be attributed
to his self-employed professional status or his commercial activities. In contrast, any natural or legal
person or partnership with legal capacity acting within the scope of its
commercial or self-employed activities at the time of the agreement is an
entrepreneur.
§2
Amendments
to the T&C
The User will be
informed of any amendments to these T&C via electronic communication means
providing the User with the means of storing such amendments in a readable
format or to print them. They are
considered approved unless the User objects against them in writing or via
electronic media. The Provider
will simultaneously inform the User of this provision when announcing the
amendments. The User must send his
objection to the Provider within six (6) weeks of being informed of the
amendments.
§3
Effectiveness
of Agreements
(1)
The
Provider offers three membership types for online-services (mashlab Demo,
mashlab Basic and mashlab Pro, see also §4).
a)
mashlab
Demo: By clicking on the “Go”
button at the end of the registration page the User sends a binding application
for a six (6) week trial membership with the Provider’s free of charge
online-service mashlab Demo. The
User can only access the end of the registration page after clicking the
“Accept T&C” button during the registration process and thereby accepting
these T&C in his application.
b)
mashlab
Basic: By sending the order e-mail
for a Basic account (to the e-mail provided by the Provider in the product
chooser) the User enters a binding agreement for an initially one (1) year
membership with the Provider’s online-services subject to charge. The User can only access the product
chooser after clicking the “Accept T&C” button during the registration
process and thereby accepting these T&C in his application.
c)
mashlab
Pro: By sending the order e-mail
for a Pro account (to the e-mail provided by the Provider in the product
chooser) the User enters a binding agreement for an initially one (1) year
membership with the Provider’s online-services subject to charge. The User can only access the product
chooser after clicking the “Accept T&C” button during the registration
process and thereby accepting these T&C in his application.
(2)
After
receiving the registration e-mail the Provider sends the User a confirmation
e-mail confirming the User’s registration; the User can print this e-mail by
choosing the “Print” function.
This confirmation constitutes the Provider’s acceptance of the User’s registration
and the effectiveness of the agreement.
§4
Object
of the Agreement, Amendments to the Agreement
(1)
The
Provider provides an online-service which enables the User to create his
personal mashlab website.
The Provider
provides one free of charge membership and two memberships subject to charge:
a)
a six (6) week free of charge trial version (“mashlab
Demo”) enabling the User to test the Provider’s online-services. The website created by the User is put
online as a mashlab portal (under the domain www.mashlab.com/userURL). The User can customize the design of
his mashlab website and upload his own contents.
b)
a version subject to charge (“mashlab Basic”) with an
extensive service package for creating a website. The website created by the User is put online as a mashlab
portal (under the domain www.mashlab.com/userURL). The User can customize the design of
his mashlab website and upload his own contents.
c)
a version subject to charge (“mashlab Pro”) with an
extensive service package for creating a website. The website created by the User is put online as a mashlab
portal (under the domain www.mashlab.com/userURL) and
as a personal website under a domain chosen by the User. The User also receives an e-mail
address (e.g. username@username.com). The User can customize the design of
his mashlab website and upload his own contents.
The currently
valid version of the service package for the mashlab Demo/Basic/Pro versions
can be found under http://www.mashlab.com/create-website/service.html
(2)
Any
voluntary, free of charge services and offers by the Provider can be terminated
at any time. In this case, the
User has no claim to the continuation of such services. The Provider is explicitly entitled to
irrevocably delete the account and website of any User including all content if
the User does not purchase the mashlab Basic or Pro version. The User will be informed of this
provision at the latest four (4) weeks after registering for the trial version.
(3)
The
Provider is entitled to employ services of third parties at any time and in any
extent to provide its services.
(4)
The
Provider has the right to extend, amend, and cancel services and to introduce
improvements when necessary to include new technical developments, to prevent
abuse or due to obligations under legal regulations. This may lead to a change in the appearance of mashlab
websites.
§5
Data
Processing
(1)
The
Provider stores the User’s personal data in order to process the
agreement. The Provider adheres to
the regulations of the Federal Data Protection Act and the Tele Services Data
Protection Act. Without the User’s
explicit consent, the Provider will only request, process or use the inventory
data or usage data insofar as it is necessary for the processing of the
agreement and for the usage and calculation of tele service fees.
(2)
The
Provider will not use the User’s data for advertising, marketing or market
research purposes without the User’s consent.
(3)
The
User has the possibility to view his stored personal data by clicking the “My
Home” button in his profile and to change or delete it insofar as the data is
not necessary for registering and providing the domain. Furthermore, regarding the User’s
consent and any further information relating to data storage, processing and
usage the Provider refers to the Data Protection Agreement which the User can
access as a printable version any time by clicking the “Data Protection”
button. This Data Protection
Agreement is also available under
http://www.mashlab.com/create-website/privacy.html
§6
Term
of the Agreement, Termination of the Agreement, Termination of Services, Refund
for Fees Paid in Advance
(1)
mashlab
Demo version: The User may
terminate the membership online at any time and without stating a reason. The User’s registered user name and
e-mail address must be referenced.
The membership ends without such termination automatically if and when
the User does not purchase the mashlab Basic or Pro version within six (6)
weeks. The User will be informed of this
provision by e-mail at the latest four (4) weeks
(2)
mashlab
Basic/Pro version: The term of the
agreement is one (1) year. The
membership is automatically extended by one (1) year if the User does not
terminate the agreement at the latest three (3) months before the end of the
term of the agreement. The User’s
registered user name and e-mail address must be referenced.
(3)
A
mashlab Basic/Pro version membership can be terminated by the Provider without
consent with a termination period of three (3) months.
In this case, any
fees paid in advance are refunded.
Both parties’
right of immediate termination remains unaffected.
(4)
Reasons
for immediate termination by the Provider are, among others, if the User
·
is
in default of payment for more than twenty (20) calendar days;
·
infringes
one or all of the regulations in Sections 8 par. 2, 8 par. 3, 8 par. 4, 8 par.
7, 8 par. 9, or 8 par. 10;
·
does
not remodel websites within a reasonable period so that they satisfy the
requirements in Section 8 par. 6;
or
·
infringes
his obligations regarding domain registration set forth in Section 9.
(5)
In
the case that the User terminates any additional optional features the
membership itself remains valid.
(6)
After
the agreement has been terminated the Provider is no longer obliged to provide
the services stated therein. The
Provider can delete all of the User’s personal data from the server, including
any e-mails remaining in the User’s e-mail folders. A transfer of the complete internet presence to a third
party’s server is not possible.
The User is responsible for saving and backing up such data in a timely
manner. The Provider draws the
User’s attention to back-up programs offered by third parties such as, e.g.,
HTTrack.
The Provider does
not accept the responsibility for usability and faultlessness of third party
programs.
Furthermore, the
Provider is entitled to have any User’s domains that were not transferred to a
new provider deleted with the relevant issuing organization.
§7
User’s
Right of Revocation
(1)
If
the User is a consumer and if he entered the agreement solely using means of
telecommunication, especially telephone, e-mail for fax, or if the agreement
was entered using the Provider’s internet page the User is entitled to revoke
his intent to register without stating a reason within a period of two (2)
weeks. This period begins at the
earliest on the day after the membership is activated, providing that the User
has received this revocation information as a text at this period of time. The revocation must be sent to the
Provider in writing. The
revocation is valid if sent within the revocation period. The right of revocation becomes invalid
if the Provider has already commenced services with the User’s explicit consent
before the revocation period has ended, or if the User himself has initiated
them.
(2)
In
the case of a valid revocation the Provider refunds the User for any usage fees
already paid.
§8
General
Obligations of the User
(1)
The
User is responsible for any content that he stores or makes available on the
Provider’s websites. The Provider
is not obliged to check the User’s website for possible legal infringements.
(2)
The
User confirms that the personal data he provides to the Provider is correct and
complete. He agrees to inform the
Provider without undue delay of any changes to the provided data and to
re-confirm the current correctness to the Provider within fifteen (15) days of
receiving such a request.
(3)
The
User agrees to keep any password(s) which he receives from the Provider to
provide access to the Provider’s services strictly confidential and to
immediately inform the Provider should he receive information that third
parties have received knowledge of such password(s). Should third parties use the Provider’s services by abusing
such password(s) by any fault of the User the User is liable for the Provider’s
compensation and damages.
(4)
The
User agrees to make no content available that is prohibited by law or constitute
a breach of decorum (especially pornographic, racist, xenophobic, radical
right-wing, or other objectionable content) or a breach of third parties’
rights (especially trademark, name or copyright rights). Furthermore, the User agrees to not use
his website for spamming purposes.
(5)
The
User agrees to identify contents on his website as his own content, naming his
full name and address. The User
specifically agrees to adhere to the imprint laws (or to the respective
regulations in the User’s country of usage). The Provider draws the User’s attention to the fact that
further legal identification regulations may be mandatory, e.g. if tele
services or media services are offered on the website. The User indemnifies the Provider from
all claims based on infringement of such obligations.
(6)
The
User agrees to configure his website avoiding excessive strain on the server,
e.g. by CGI scripts demanding high computing power or extensive working
storage. The Provider is entitled
to block the User’s access to his website if the above requirements are not
respected. The Provider will
immediately inform the User of such measures.
(7)
The
User agrees to refrain from running the website on a third party server.
(8)
The
User agrees to back up all files to which he has access and his rendered
website independently and regularly.
Such backup must be completed in any case before the User makes any
changes and in case of system maintenance by the Provider, providing that such
system maintenance has been announced beforehand. Any backup copies created by the User must in no case be
stored on the Provider’s server.
(9)
The
User must not send e-mails with identical contents to multiple recipients
without each recipient’s consent (“spam”) using the Provider’s system or
server.
(10) The Provider’s portal shows a
mashlab header. The User is not
entitled to remove or conceal this header.
§9
Domain
registration, Domain Termination, Change of Provider
(1)
The
mashlab Pro version includes a domain.
When obtaining and/or monitoring domains the Provider merely serves as
mediator between the User and the organization issuing the domain
(“registrar”). The Provider has no
influence on the issuing of the domain and accepts no responsibility for (i)
the issuing of the domain requested by the User; (ii) the domain being free of
third person rights; or (iii) the domain enduring. The Provider’s information regarding the availability of a
specific domain is based on third party information and only relates to the
period in time that such information was received by the Provider. The domain issuing to the User becomes
effective upon the domain being registered for the User and 4 in the
registrar’s database. Top-level domains
(e.g. “DE”) are monitored by several, generally international,
organizations. Each of these
organizations has its own specific conditions for registering and monitoring
domains. Therefore, additional
registration conditions and regulations apply to the requested domain, e.g. for
DE domains the DENIC registration conditions and the DENIC registration
regulations of DENIC e.G. These
conditions and regulations are part of the agreement. The conditions for the
respective issuing organization for other top-level domains apply to such
domains; the Provider will send them to the User upon request; also, such
conditions are available on the issuing organizations’ websites.
(2)
The
User confirms that any domain requested by the User does not infringe third
party rights.
(3)
The
User agrees to provide the correct and complete data of the domain owner
(“registrator”) and the administrative contact (“admin-c”) when registering the
domain. In any registration, the
Provider is the technical contact.
Regardless of the respective registration conditions this data includes
the registrator’s name, postal address suited for personal mail deliveries (no
post office box, no anonymous address), e-mail address and telephone
number. The User must inform the
Provider online of any changes to this data.
(4)
The
User is stored as domain owner and admin-c with the respective issuing
organization. For technical
reasons, the Provider’s e-mail address is registered as admin-c e-mail address
for domains with the extensions .com, .net or .org. The User explicitly agrees to this measure.
(5)
Once
the agreement becomes effective the Provider initiates the domain request with
the respective registrar. The
Provider is entitled to wait with activating the domain until the compensation
for such registration has been paid.
(6)
The
requested domain may not be changed once it has been registered with the
respective registrar. Should the
requested domain have been issued elsewhere before the request was forwarded to
the registrar the User may choose another domain. This does not apply in the case of a change in providers
with the previous provider refusing such change. In this case the User must obtain the previous provider’s
consent or request an additional domain from the Provider subject to
costs. Should certain domains be
terminated by the User or based on a binding decision in a domain conflict the
User is not entitled to the registration of a cost-free replacement
domain.
(7)
The
User must inform the Provider immediately when he loses the rights to a domain
registered in his name due to a court decision.
(8)
All
domains registered via the Provider can be changed to other providers,
providing the User adheres to these T&C and the issuing organization’s
conditions and providing that such issuing organization provides the respective
top-level domain (e.g. “DE”) or that it supports the change in providers and
the technical requirements. The
agreement remains intact. Such
agreement requires an explicit termination. All declarations relating to the domain, especially the
termination of the domain, the change in providers and the cancellation of the
domain must be in writing. If the
Provider cannot initiate the change in providers (kk-application) based on the
new provider’s request due to such request being made belatedly by the new
provider or the User or because necessary approvals have not been confirmed the
Provider is explicitly entitled to cancel the terminated domain on the
effective date of termination with the respective issuing organization
(“close”). The Provider retains
the right to wait with the approval of kk-applications until all open claims
against the User are satisfied.
§10
Obligations
of the Provider
(1)
The
Provider puts forth its best efforts to provide constant availability and
faultless performance. The
Provider accepts no responsibility for disruption to the usability of its sites
when the server is not accessible due to technical or other problems outside
its sphere of influence (force majeure, third party responsibility etc.). The User accepts especially that, due
to technical reasons and external influence e.g. by the telecommunication grid,
a 100% uninterrupted availability of the websites is not achievable and that he
has no right to constant availability.
Temporary limitations of availability do not constitute damage claims
nor do they entitle the User to terminate the agreement immediately.
Furthermore, the Provider informs the User that
limitations with partial or no availability may occur due to temporary blocking
of its website for technical improvement, repairs and disruption etc. Furthermore, the Provider reserves the
right to block the access to its websites for the installation of technical
improvements.
Should the Provider be in arrears with its services
the User must first set the Provider a reasonable period of grace to resume
services; the User may only terminate the agreement if this deadline is not met
by the Provider. Such period of
grace must be set in writing. In
this context, “in writing” may mean electronically, providing the User includes
his name in the notification and provides a qualified electronic signature
under the Signature Act. Such
period of grace must cover at least two (2) weeks.
(2)
A
limited amount of system requirements are necessary for the faultless
performance of changes to the Provider’s websites. An overview of the current requirements can be found under
http://www.mashlab.com/create-website/requirements.html.
The Provider does not accept
responsibility for disruptions when other system configurations are used.
§11
Warranty
(1)
Any
damage claims by the User are excluded.
Excepted are damage claims by the User based on (i) negative impact to
life, body, or health; (ii) infringement of essential obligations under the
agreement (cardinal obligations); and (iii) liability for other damages caused
by intentional or grossly negligent behavior of the Provider, its legal
representatives or agents.
Essential obligations under the agreement shall mean such obligations as
are necessary for the fulfillment of the agreement’s purpose.
(2)
The
Provider is only liable for agreement related and predictable damages if they
have been caused by simple negligence; this does not apply for damage claims
based on negative impact to the User’s life, body or health.
(3)
The
limitations in paragraphs (1) and (2) apply to the Provider’s legal
representatives and agents if the damage claim is directed against such persons
directly.
§12
Indemnification
(1)
The
User indemnifies the Provider from all claims, including damage claims, made by
other users or other third parties against the Provider if their rights were infringed
by contents published by the User on the Provider’s websites. Furthermore, the User indemnifies the
Provider from all claims, including damage claims, made by other users or other
third parties if their rights were infringed by the User’s usage of the
Provider’s website services. The
User agrees to cover all reasonable costs based on the infringement of third
party rights, including the reasonable costs of legal representation. Any further rights or damage claims by
the Provider remain unaffected.
The above obligations of the User do not apply if the
User did not cause the infringement.
(2)
Should
the User’s usage of the Provider’s website services infringe third party rights
the User must cease any behavior contrary to the contract or any illegal
behavior immediately upon notification by the Provider.
§13
Final
Clauses
(1)
Agreements
between the Provider and the User are subject to the law of the Federal
Republic of Germany under exclusion of the UN Purchase Law.
(2)
Court
venue for any conflict under the agreement is the Provider’s location,
providing that the User is an entrepreneur, an artificial person under public
law or a federal special fund under public law.
(3)
The
agreement remains effective even if separate clauses are or become
ineffective.