General Terms and Conditions

1. Scope

These general terms and conditions (hereinafter ‘GTC’) regulate the legal relationship between Multimedia Networks AG Hoststar (hereinafter ‘MN AG Hoststar’) and its customers. The version applicable is the one that is valid at the time of conclusion of the contract.

2. Contract conclusion

By submitting the online order form, applicants are bound as regards the use of MN AG Hoststar services and offers until acceptance or rejection of the application by MN AG Hoststar. With the acceptance of the order by MN AG Hoststar, the contract is binding. In any event, the contract begins when MN AG Hoststar services and offers are used. MN AG Hoststar reserves the right to refuse an order without giving reasons.

3. Hoststar - Multimedia Networks AG Services

3.1 MN AG Hoststar endeavours in the framework of its operational resources to provide its services smoothly around the clock and without interruption, but gives no guarantee for uninterrupted access at all times to the agreed services. MN AG Hoststar also gives no guarantee that the contracted services and offers are usable by all terminal equipment without any problems. As far as possible, customers will be given sufficient notice of foreseeable operating interruptions that are necessary for fault repair or carrying out maintenance work or upgrading the service, etc.

3.2 MN AG Hoststar reserves the right to change the services at any time and to introduce innovations or adjustments to products. Customers are themselves responsible for keeping up-to-date with such information. For already concluded hosting contracts, the services that were offered at the time of contract conclusion shall be considered as the operative basis. Existing customers who want to profit from adjustments and innovations should cancel the existing contract and order a new hosting subscription.

3.3 MN AG Hoststar can adjust the scope of services at any time if certain services and offers adversely affect server stability and/or performance. MN AG Hoststar is entitled to perform security-related updates and changes to system components and applications, regarding which MN AG Hoststar is not obliged to provide information. Compatibility testing and the carrying out of possible adjustments relating to such changes are the responsibility and duty of customers.

3.4 MN AG Hoststar provides both email and phone support, based on their own services and offers. MN AG Hoststar is not obliged to provide technical support relating to programming, use of third party software or server administration. If this is provided anyway, it is provided as a service to customers. In this regard, MN AG Hoststar cannot be held liable or be compelled to provide such support. The urgency of answering support emails on weekends is at the discretion of the on-call service staff. MN AG Hoststar endeavours as part of its operational resources to provide support services during the specified times, but a guarantee for this cannot be given.

3.5 MN AG Hoststar is entitled to send all communications to customers by email. The same is applicable, but not exclusively, to announcements of product adjustment and innovations, technical maintenance work, invoices, payment reminders, installation and termination confirmations, lost access data, etc. In this regard, customers (according to section 4.3) are obliged to keep their email addresses and all data up-to-date.

4. Customer Obligations

4.1 Customers are obliged to treat their usernames and access passwords confidentially. Customers are responsible to MN AG Hoststar for any use of their domains and liable for any loss or damage resulting from misuse. They are obliged to take all necessary measures to ensure that it is not possible to interfere illegally in other systems nor manipulate programs nor introduce computer viruses via their contractually agreed services. Customers are fully liable for all damages caused by the misuse of a contractually agreed service (such as hacking due to incorrect or not updated scripts, or the use of the same access data for FTP and databases, spam attacks via a user email account, etc.). For more information, please refer to our safety guidelines!

4.2 Should customers have to pass on their access data to third parties, this is only allowed in connection with web design and programming work. Customers also agree to ensure that third parties comply with all provisions of these terms and conditions. Customers are liable to MN AG Hoststar for any violation or culpable misconduct in relation to these terms and conditions, due to the use of services by authorized and unauthorized third parties. In any case, the customer exempts MN AG Hoststar from any claims whatsoever by third parties.

4.3 MN AG Hoststar reserves the right to invoice any expenses that arise due to invalid customer data: email contact and postal address, etc.  This applies especially to additional expenditure related to address validation, new account creation and/or invoices sent by post, etc.

4.4 In their use of MN AG Hoststar services, customers undertake to comply with international and Swiss law and generally accepted rules of conduct. They are responsible for the content of information (text, images, sounds, computer programs, databases, audio/video files, etc.) that they or third parties transmit or process or retrieve or provide for retrieval via their domains. Customers are also responsible for pointers (especially links) to such information. In particular, the following information content may not be disseminated via customers’ domains:

• Displays of violence as defined in article 135 of the Swiss Penal Code (StGB)
• Pornographic magazines, pornographic audio or video recordings and images as defined in StGB article 197
• Calls for violence as defined in StGB article 259
• Racial discrimination as defined in StGB article 261
• Directions for or incitement to criminal behaviour
• Illegal gambling as defined by the lottery law
• Fraudulent contents (subscription traps, Internet fraud, etc.), promises of financial or other gains and the like that are used for personal gain
• Information, files and images that violate national and international copyrights, related protective or other intellectual property rights (name and trademark rights) of third parties

4.5 The operation of services which adversely affect the operational resources of MN AG Hoststar is not allowed. In particular, the following content will not be tolerated:

• File download sites/file sharing/torrent trackers (MPEG, AVI, MP3, etc.)
• Offering/providing/uploading of files, software or material infected or corrupted by viruses, or which can damage another computer in any other way or impair its functionality
• Banner-exchange systems
• Streaming/online radio
• Online games
• Adult websites (sites with images of pornographic content,  as defined in section 4.4.)
• Websites with radical political or religious content (as defined in section 4.4)

4.6 Which contents are covered by any of these points is at the discretion of MN AG Hoststar.
Customers are responsible for ensuring that young people under 16 or 18 years do not have access to sites that are only valid for persons over 16 or 18 years.

4.7 The sub-letting of web directories is accepted, but only subject to separate volume invoicing.

4.8 MN AG Hoststar reserves the right to suspend customers’ domains with immediate effect at customers’ costs if there has been misuse or because the user behaviour in any way affects the operating performance of the server. Misuse is considered as failure to meet the above (section 4) and below (sections 5 and 6) mentioned contractual obligations of the customer. The suspension remains in effect until the relevant facts and circumstances have been resolved, or the customer provides proof of the harmlessness of the content and/or there is a judicial decision in a legal dispute. Damage claims by MN AG Hoststar remain expressly reserved in any case of misuse of hosting or breach of the GTC.

5. Email

5.1 Customers should regularly check incoming emails in their personal electronic mailbox. MN AG Hoststar reserves the right, after notification, to delete electronic mail that uses a large amount of storage space.

5.2 The sending of unsolicited advertising emails by the customer to third parties is inadmissible. If such activity becomes known, MN AG Hoststar reserves the right to suspend the hosting/domain of the customer without notice, pending clarification of the facts. Sending unsolicited mass mailings (spamming, mail bombing) via the MN AG Hoststar server is prohibited. Likewise, the use of mailing lists to an extent that could endanger the stability of our operating systems is strictly prohibited. Such behaviour is considered as misuse and will result in the above-mentioned sanctions (section 4.8).

5.3 MN AG Hoststar points out that the use of a spam filter can in some cases filter and block wanted or expected mails, depending on the configuration. MN AG Hoststar refuses all liability for any emails not received in such a case.

6. Data Security

6.1 Customers should themselves make backup copies of data that is sent to MN AG Hoststar – in whatever form. Even if the Hoststar MN AG servers are secure, customers are themselves responsible for the security of data transmitted. In the case of data loss, the customer is obliged to transmit the data again and at no cost to MN AG Hoststar.

6.2 It is recommended to customers that a full data backup is carried out before any alteration done by the customer or a third party. Should data loss occur during adjustments, the obligation according to section 6.1 enters into force.

6.3 Customers are also responsible for updating their systems (including third party software), and particularly for installing security-related updates. MN AG Hoststar reserves the right to block unsafe applications without prior notification. This block remains in effect until the relevant facts have been resolved and/or the applications, with the appropriate updates, again correspond to the current safety standard. MN AG Hoststar excludes any liability for damages or claims arising from such a case.

6.4 Because of data security issues, MN AG Hoststar obligates itself to give direct information only to the contractual partner about data of theirs processed by MN AG Hoststar. No data will be passed on to third parties, although the customer is responsible and liable (see section 4.2). Similarly, MN AG Hoststar accepts all adjustments of a booked service exclusively via the customer/contractual partner. Third parties are not entitled to apply for changes and/or adjustments to an existing service for a customer/contractual partner.

6.5 In the event of death of a contractual partner, MN AG Hoststar is only obliged to provide information about the access data for the deceased contractual partner’s services to that person’s heirs on presentation of an official inheritance certificate (see application form in PDF format).

6.6 In case of change of ownership or change of contractual  partner of MN AG Hoststar, the alteration of customer data will only be carried out after receipt of the completed ‘change of contractual parties’ form, signed by both parties (form in PDF format in my.hoststar area under ‘Additional Services’) and the necessary additional documentation. In case of disagreements between multiple parties about a domain or an account with MN AG Hoststar, the parties must reach an agreement among themselves independently. MN AG Hoststar does not serve as a dispute resolution service.

6.7 In case of violations of section 4 – illegal content on a page – MN AG Hoststar is only obliged to suspend the website in question by a judicial decision or by order of the contractual partner concerned. MN AG Hoststar excludes all liability in this regard.

7. Data Protection

7.1 MN AG Hoststar points out that personal data is stored as part of the implementation of the contract. In the processing of personal data, MN AG Hoststar adheres to the legal requirements of data protection.

7.2 If illegal or immoral activities are discovered, MN AG Hoststar is entitled to pass on customer data to third parties, namely law enforcement agencies. Similarly, the customer should be aware that MN AG Hoststar may be required by courts or other authorities to release customer data.

7.3 When using the Internet there are various data-protection risks for customers. In particular, data protection is not guaranteed in the non-encrypted transmission of data. It must therefore be reckoned with that unencrypted emails may be unauthorizedly read, altered or suppressed by third parties. The encryption or ciphering of transmitted information can improve protection against unauthorized access. Firewalls may prevent or at least impede the unwanted intrusion of unauthorized third parties. Taking measures to improve data protection is within the scope of the customer’s responsibility.

8. Liability

8.1 If damage-causing events occur on the transmission paths of MN AG Hoststar, or other service providers, MN AG Hoststar is only liable if the damage is caused by MN AG Hoststar intentionally or through gross negligence. MN AG Hoststar is not responsible for damages caused to customers through misuse by third parties. This includes damages caused by computer viruses.

8.2 Customers are solely responsible for the compatibility of the hardware and software components they use. MN AG Hoststar gives no guarantee that the domain is usable without any problems by all terminal equipment. MN AG Hoststar disclaims any warranty or liability for the loss or unauthorized alteration of email messages. MN AG Hoststar is not liable for service interruptions that result from fault repair, maintenance, infrastructure adjustments (switching, etc.) or the introduction of new or different technologies. In any case, the liability of MN AG Hoststar for direct damage is limited. The liability for consequential damages of any kind, especially for lost profits, is excluded.

9. Duration of contract and termination of contract

9.1 The contract is concluded for an indefinite time, but at least for a year.

9.2 The notification or invoice for the renewal of the contract is sent 2 months before the expiry of the contract (i.e. 10 months after the beginning) and will be delivered by email to the email address specified in the order (see also section 4.3). If by the date of contract renewal (12 months after the beginning) no payment has been made, MN AG Hoststar is entitled to suspend or terminate the account and to withhold all other services. This suspension will remain in effect until the payment is received by MN AG Hoststar. MN AG Hoststar excludes any liability for any resulting damages, claims, etc. on the part of the customer.

9.3 Each contractual party may terminate the agreement by giving at least 30 days notice to end the subscription at the end of the one-year term. Without timely notice, the contract is extended automatically for one more year. By mutual agreement between the parties (the customer and MN AG Hoststar), the contract can be terminated within other periods of notice or on another date. If the termination of the contract occurs before expiration of the minimum term or on a specific date (not on contract-termination date with proper termination), then the pro rata reimbursement of fees already paid is excluded and forfeited to MN AG Hoststar.

9.4 In the case of misuse, MN AG Hoststar reserves the right to terminate the contractual relationship with immediate effect. Misuse is considered as non-fulfilment of the customer contractual obligations mentioned in sections 4 and 5

9.5 In case of repeated or serious violation of these terms and conditions, particularly with libel or defamation of MN AG Hoststar in any form (forums, chats, scams or spoofing, etc., as well as defamatory behaviour or threats to employees), MN AG Hoststar is entitled to terminate the contract with immediate effect.

9.6 In case of repeated or serious violation of these terms and conditions, particularly with libel or defamation of MN AG Hoststar in any form (forums, chats, scams or spoofing, etc., as well as defamatory behaviour or threats to employees), MN AG Hoststar is entitled to terminate the contract with immediate effect.

9.7 In case of misuse of services – the unlawful or contracually inadmissible activities defined in sections 4, 5, 6, 8 and 9 – MN AG Hoststar is entitled at any time to terminate, suspend or delete the account in question without notice. MN AG Hoststar liability in case of such a termination, suspension or deletion of the account is excluded.

10. Prices

10.1 The prices are based on the current MN AG Hoststar price list (published on the MN AG Hoststar website).

10.2 Any price reductions on our services cannot be made applicable for contracts already concluded. In addition, there is no right of reclamation for such reductions against the annual charges paid by the customer.

11. Payment Conditions

11.1 The services of MN AG Hoststar are always to be paid yearly, in advance.

11.2 As payment documentation, the customer should use the invoice sent by email or the invoice made available in PDF format in the my.hoststar area. Any bank or Post Office charges arising from the payment and billed to MN AG Hoststar will be invoiced to the subscriber.
All invoices in connection with the services of MN AG Hoststar must be paid within 14 days of the invoice date.

11.3 If payment is delayed, MN AG Hoststar is entitled to prohibit the use of contractual services (in accordance with section 9.2) .

12. Transferral of rights and obligations from the contract

The customer may transfer rights and obligations from this contract to a third party only after written approval granted by MN AG Hoststar (see also sections 4.2, 6.5 and 6.6).

13. Final Provisions

13.1 MN AG Hoststar expressly reserves the right to amend these General Terms and Conditions as well as individual services at any time. The customer will be informed of any new conditions and they will be considered as approved if there is no objection within the period of one month.

13.2 If one or more provisions of our General Terms and Conditions is held to be invalid, what will be considered to be agreed will be what the intended purpose of the provision(s) correlates to legally or comes as close as possible to legally. The other provisions will remain legally valid.

14. Applicable place of jurisdiction

All legal relations which are not covered by this contract are subject to the Swiss Code of Obligations. The contractual parties agree that the exclusive place of jurisdiction is Fraubrunnen, canton of Bern, Switzerland.

Hoststar - Multimedia Networks AG, 3312 Fraubrunnen – September 2010