General Terms and Conditions
1. Scope and general information
1.1. DFAU GmbH, Gustav-Weißkopf-Str. 5Friedrichstr. 4+6, 907682 Fürth (hereinafter referred to as the 'provider') provides all its goods and services exclusively on the basis of the following General Terms and Conditions ('GTCs').
1.2. The range of services provided by the provider includes the TYPO3 hosting service (toujou) and individual advisory, design, publishing, and development services relating to digital media.
1.3. If the customer is an entrepreneur as per section 14 of the BGB (German Civil Code), these GTCs as well as the provider’s domain registration conditions where appropriate shall also apply to any future business relations involving the parties to the contract.
1.4. Any terms and conditions of the customer which differ in whole or in part from these GTCs shall not be recognised unless the provider agrees to these in writing. The provider’s GTCs shall also then apply exclusively when services are provided without reservation by the provider in the knowledge that the customer has conflicting terms and conditions.
2. Registration, conclusion of contracts
2.1. When you register as a user with toujou (hereinafter referred to as a 'toujou user'), you accept the GTCs set out here for the use of toujou.
The offer is exclusively intended for persons aged 18 and over.
2.2. The customer’s offer to conclude the contract envisaged shall involve either the submission to the provider in writing (post or email) of the order form (https://www.toujou.com/pricing/forms/) signed by hand or the sending of an electronic declaration, providing this is offered in the case in question. The contract shall only come into effect when the provider specifically accepts the customer offer, the provider first takes action which the customer would recognise as fulfilment, or when payment is sent, providing the provider offers immediate payment options and the customer has made use of this too.
Confirmation of receipt of the customer order, along with acceptance of the offer, shall take the form of a manual confirmation email within 2 working days of receipt of the order form. If the customer has not selected any of the immediate payment options offered or this is not offered in the case in question, the customer shall also be prompted to make the advance payment agreed at the time of the confirmation email.
3. Object of the contract, changes to the contract, migration
3.1. toujou is a hosting service for the open source content management system (CMS) ’TYPO3’. The toujou user gets a website and editing system which allows it to make its own changes in design and add its own content. This system and associated design built by the toujou user are offered on a 'Software as a Service' (SaaS) basis. Ongoing updates and further developments are installed in the system through the use of the hosting service.
3.2. Where a specific storage capacity is stated in the respective specification of services for the tariff selected, this applies to the entire storage space available as per the specification of services for the toujou tariff and is intended, among other things, to cover the entire storage requirement for the editing system, the temporary files generated from the system, and the storage of log files etc.
3.3. After the contract has been in force for at least 12 months (minimum contract term), the toujou customer has the option, having given due notification of its intention to cancel the toujou service, to take over as an individual website the complete TYPO3 configuration, in its entirety if required, and continue to operate and develop it independently of the provider. All files and database content from the current system configuration required for migration of the installation shall be made available to the toujou user on an agreed relocation date.
Migration shall give the toujou user the non-exclusive right to use, without any time limit, all components originally made available by the provider. Any forwarding of the design/templates, the TYPO3 integration, or individual components of the TYPO3 integration to third parties shall remain prohibited.
3.4. toujou offers users different service packages. An overview of tariffs along with the respective current specification of services is available here (https://www.toujou.com/pricing/).
3.5. The toujou user agrees that its invoice will be sent electronically (email). This is valid without a signature.
3.6. Voluntary, free services from the provider which are not part of the specification of services or specifically designated as such may be terminated at any time. The user, in such cases, has no entitlement for the service to continue.
3.7. The provider has the right at any time and to any extent to use third parties in order to provide the service.
3.8. The provider reserves the right to extend, modify, delete, and make improvements to services, particularly if these help promote technical progress, appear necessary, and help prevent misuse. The provider shall only make changes which change the appearance of toujou websites if the changes are reasonable from the toujou user’s perspective or the provider is obliged to do so as a result of statutory provisions. If the toujou user does not agree to the price increase, the provider has a special right of cancellation.
3.9. In addition, the provider may change the content of the existing contract and these GTCs with the consent of the toujou user. The provider is also therefore entitled to increase the fees by a reasonable amount. In any event, a maximum annual increase of up to 5% is reasonable in this context. Consent to the change shall be deemed to have been granted if the toujou user does not object within one month of receiving notification of the change. The provider is obliged to inform the toujou user, when notifying it of the change, of the consequences of failing to object.
3.10. The provider may also transfer its rights and obligations from the 'toujou' contract to one or more third parties ('transfer of contract'). The provider must inform the toujou user of the transfer of contract at least 4 weeks before the time of transfer. In the event of a transfer of contract, the toujou user has the right to object to the transfer of contract and duly cancel the contract during the regular term. Up to the end of the contract term, the service shall continue to be maintained by the provider and may be triggered after the end of the contract as per point 2.2. If the toujou user does not use the migration option, user rights shall lapse after the end of the contract term. The provider is entitled after the end of the contract to delete all the toujou user’s content irrevocably and is not obliged to inform the toujou user in advance of the consequences of failing to request relocation
4. Personal data
4.1. The toujou user is obliged to give the provider its full name and a summonable postal address (no P.O. box or other form of anonymous address), email address, and telephone number. The toujou user shall ensure that the personal data entered is both accurate and complete. The toujou user agrees to its data being registered and electronically stored at the provider. No data shall be forwarded to third parties unless the toujou user gives its specific consent or forwarding is necessary in order to deliver the service package (e.g. data being forwarded to the respective registrar for the registration of a domain). Every toujou user is obliged to keep personal data up to date. In the event of any changes, the toujou user must update the data immediately via their customer menu or by notifying the provider by post or email.
4.2. The toujou user is obliged to keep login data secret in order to avoid any misuse by unauthorised third parties.
5. Contract term, contract termination, cessation of service, repayment of fees paid in advance, right of retention
5.1. Providing nothing in the respective specification of services states otherwise, the contract for fee-based packages shall have a term of 12 months and be extended by the same period each time if the contract is not cancelled one month before the end of the respective term.
5.2. The provider is entitled to cancel the contractual relationship unilaterally without giving any reason subject to a notice period of 3 months. Fees paid in advance on a pro rata basis shall be reimbursed in such cases. Migration of the installation shall take place as per point 2.2. The entitlement described in point 2.2 may only be exercised up to the end of the contract term and shall lapse automatically thereafter. The provider is entitled after the end of the contract to delete all the toujou user’s content irrevocably and is not obliged to inform the toujou user in advance of the consequences of failing to request relocation.
5.3. The right of both parties to the contract to cancel without notice for an important reason remains unaffected. An important reason for the provider would apply in particular if the toujou user, despite being warned, is culpable of breaching a contractual obligation or fails to remedy this breach within a reasonable period of time.
A warning is essential if the breach in question makes it unreasonable for the provider to continue with the contract. This is particularly the case:
- in the event of serious breaches of the contract or the law such as significant breaches as per sections 23 and 24 of the Jugendmedien-Schutzstaatsvertrag (Germany’s Interstate Treaty on the Protection of Minors from Harmful Media) and/or significant breaches of copyright through storage and/or holding for retrieval of such content, in particular music, images, videos, software, etc., and/or the storage and/or holding for retrieval of content where storage and/or holding for retrieval is punishable.
- in the event of offences by the customer against the provider or other customers of the provider, in particular
- in the event of punishable spying on or manipulation of the data of the provider or other customers of the provider.
Non-compliance with contractual obligations may also lead to civil and criminal law consequences for the user itself. Fees paid in advance on a pro rata basis shall not be reimbursed in such cases. The provider is also entitled to shut down the website of the toujou user and block access to toujou if fees are not paid. If the provider imposes a block, it is entitled to block all services under the contract. The choice of blocking measure is at the discretion of the provider. A block shall not release the customer from its obligation to pay the fees agreed. If the provider imposes a block, it shall notify the customer of this. The provider meets its notification obligations if it sends the respective notifications by email to the email address given by the customer.
5.4. Ordinary and extraordinary cancellation must be in writing in order to be valid. In the event of cancellation by email, this must be sent from the email address the user entered as the contact address on its toujou site. The registered user name and date of cancellation must be given at the time of cancellation.
5.5. Cancellation of any additional fee-based options chosen shall not affect the rest of the contractual relationship.
5.6. Following termination of the contractual relationship, the provider is no longer obliged to provide the contractual services. It is entitled to delete all the toujou user’s data on the server. Transfer of the complete website to a third-party provider’s server is only possible up to the time the contractual relationship is terminated. The toujou user is therefore responsible for ensuring data is stored and backed up in good time or making the relocation request in good time. The provider is also entitled, following termination of the contract, to arrange deletion by the respective registrar of any of the toujou user’s domains not transferred to a new provider ('CLOSE').
6. General obligations of the toujou user
6.1. The toujou user has sole responsibility for all content the toujou user holds for retrieval or stores on toujou websites. The provider is not obliged to check the toujou user’s toujou websites for any breaches of the law.
6.2. The toujou user undertakes to comply with all relevant national provisions as well as those of the Federal Republic of Germany. The toujou user, as part of its obligation to comply with statutory and contractual rules, is also responsible for the behaviour of any third parties it commissions and in particular of performing agents and vicarious agents. This also applies to other third parties to whom it knowingly makes available access details relating to the provider’s services.
6.3. The toujou user undertakes not to make available any content which breaches statutory prohibitions, common decency (particularly pornographic, racist, xenophobic, radically right-wing, or other objectionable content), or the rights of third parties (in particular personal rights, trademark rights, brand rights, and copyright). The toujou customer is not allowed either to offer or arrange to be offered pornographic content or for-profit services concerned with pornographic and/or erotic content (e.g. nude images, peep shows, etc.). The toujou user also undertakes not to use its website for spam purposes or link-building purposes.
6.4. If a claim is made (e.g. for an injunction, retraction, correction, compensation, etc.) by third parties or public bodies against the provider as a third-party or joint wrongdoer due to unlawful content the toujou user makes available on its website, the toujou user undertakes to indemnify the provider against all claims and bear the costs arising as a result of the claim or rectification of the unlawful situation. This also includes in particular any defence costs the provider needs to incur. Indemnification also applies – by way of a contract in favour of third parties – to the respective domain registrar as well as other persons involved in the registration of domains. The toujou user is also obliged to support the provider in any way in putting forward a defence against such a claim.
6.5. The toujou user undertakes not to provide direct links from other websites to downloads on its toujou website.
6.6. The toujou user undertakes to meet itself the obligation to provide website credits (or the corresponding statutory obligation in the country of use).
6.7. The toujou user is obliged to back up itself on a regular basis all files and content it is able to access. In any event, data must be backed up before any change made by the toujou user. Under no circumstances may the backup copies created by the toujou user be stored on the toujou server.
6.8. The toujou user may not send any mass emails with the same content (so-called 'spam') via the provider’s systems or servers without the consent of the respective recipient.
6.9. The toujou user shall only use for its toujou website the designs contained in toujou. It is specifically prohibited from saving the toujou website and continuing to use it on a third-party server.
7. Domain registration, cancellation, or change of provider
7.1. Our tariffs include one or more optional domains. In terms of procuring and/or looking after domains, the provider is only acting as an intermediary between the toujou user and the respective organisation allocating the domain ('registrar'). The various top-level domains (e.g. '.de', '.com') are managed by a number of different organisations, mostly at a national level. Each of these organisations involved in the allocation of domains has its own conditions for the registration and management of domains. This means the registration conditions and guidelines associated with the domains to be registered also apply accordingly, e.g. for DE domains, the DENIC registration conditions and the DENIC registration guidelines from DENIC e.G. These form an integral part of the contract. The conditions of the respective registrar, which the provider can send the toujou user upon request and which can also be accessed online from the respective registrar, apply accordingly to the registration of other top-level domains.
7.2. The toujou user is obliged in particular to provide, for the purposes of domain registration, full and accurate details of the domain owner ('registrant') and the point of contact for administrative purposes ('Admin-C'). In any event, the point of contact for technical purposes is DFAU GmbH. Regardless of the applicable registration conditions, this includes in each case the name and a summonable postal address (no P.O. box or other form of anonymous address) as well as an email address and telephone number. In the event of any changes, the toujou user must update the data immediately by notifying the provider.
7.3. After the contract is concluded, the provider shall offer the option to request the desired domain from the registrar responsible. The provider is entitled only to permit activation of a domain after payment of the fees agreed for registration. The provider has no influence on the allocation of domains by the respective organisation. The provider provides no guarantee that the domains requested for the toujou user will be allocated and/or that allocated domains will be unencumbered by third-party rights or remain in force over time. Information from the provider as to whether a given domain is still free is provided by the provider on the basis of details from third parties and only applies to the time the provider obtains the information. The domain is only allocated to the toujou user upon registration of the domain for the toujou user and entry in the registrar’s database.
7.4. The toujou user shall check, before requesting a domain, that this domain is unencumbered by third-party rights and does not breach any applicable law. The toujou user shall make sure it has met this obligation and that this check did not reveal anything to suggest any violation of the law.
7.5. Any change to the requested domain following registration with the respective registrar is ruled out. If a requested domain has already been allocated elsewhere by the time the request is forwarded to the registrar, the toujou user may select another domain. This does not apply in the event of a change of provider if the existing provider refuses the change of provider. In such cases, the toujou user shall arrange for the existing provider to give its approval or request an additional fee-based domain via the provider. If individual domains are cancelled by the toujou user or due to binding decisions in connection with domain disputes, the toujou user shall not be entitled to request a free replacement domain.
7.6. In the case of all domains registered via the provider, the toujou user may, as long as it complies with these GTCs and the respective conditions of the registrar, switch at any time to another provider, providing this provider offers the corresponding top-level domain (e.g. '.de') or supports the change of provider based on what the situation requires and the various technical requirements. The relevant contractual relationship associated with any of the fee-based packages shall not be affected by any such change. In any event, a specific cancellation is required in this regard. All statements relating to domains, in particular domain cancellation, change of provider, and domain deletion, must be in text form. If the provider is unable to grant the change of provider (connectivity coordination request) to the toujou user’s new provider in good time because the change of provider was arranged too late by the new provider or the toujou user or the requirements needed for consent are not met, the provider is specifically entitled to have the cancelled domain deleted by the respective registrar at the time scheduled for cancellation ('CLOSE'). The provider reserves the right only to grant connectivity coordination requests once all undisputed outstanding amounts payable by the toujou user have been settled.
7.7. The toujou user is obliged to notify the provider immediately if it loses the rights to a domain registered for it.
8. Problems with delivery of services
8.1. The provider is only responsible for problems with delivery of services if these concern the services it is to provide as per point 2.1 (object of the contract). In particular, the provider is not responsible for functionality resulting from the individual toujou configuration (formatting or integration of own scripts).
8.2. The provider shall strive to ensure consistent availability and faultless functionality. The toujou user recognises, however, that technical reasons and dependence on external influences, e.g. uninterrupted availability of toujou websites not being achievable in the context of telecommunications networks, so the toujou user is not entitled to continuous accessibility. Merely temporary access restrictions shall not give rise to either warranty claims or any right to extraordinary cancellation. In addition to preventing access due to external influences beyond the provider’s control, it also reserves the right to restrict access in terms of time and/or scope, in particular in the case of temporary blocking of the toujou website for the purpose of incorporating technical improvements, rectifying faults and disruptions, etc.
8.3. A few system requirements are necessary to ensure trouble-free functionality for the editing environment associated with the toujou TYPO3 configuration. An overview of current requirements can be found HERE. The provider is not responsible for any problems with delivery of services associated with the use of other system configurations.
9.1. We are liable in accordance with statutory provisions for any culpable violation of our material contractual obligations. Material contractual obligations are obligations, concerned with the typical purpose of the contract, which need to be fulfilled for proper performance of the contract to be possible at all and with which the contractual partner might ordinarily expect compliance. Providing we are not charged with conduct that is grossly negligent or intentional, we are only liable for any typical, foreseeable loss or damage.
9.2. In all other cases, we are only liable if loss or damage has been caused by one of our legal representatives or a performing agent either intentionally or through gross negligence. For any loss or damage resulting from death, physical injury, or damage to health, we are liable in accordance with statutory provisions. Any other compensation claims against us arising from any violation of obligations are excluded. In particular, the provider is not liable
- for any data loss affecting toujou users or for unauthorised discovery by third parties of personal data of users’ of the toujou service (e.g. by hackers).
- for details and information, which toujou users themselves have made accessible to third parties, being misused by these.
- for content and activities of toujou users.
9.3. Any liability in accordance with the Produkthaftungsgesetz (German Product Liability Act) remains unaffected.
10. Data protection
10.1. The provider gathers, processes, and uses personal data of toujou users. The provider’s privacy statement contains further information on data processing and data protection. This is available here.
10.2. The toujou user is aware that it is technically possible for the provider to view the content saved on the server at any time. It is also theoretically possible for unauthorised third parties to view the toujou user’s data during transmission via the Internet.
11. Right of cancellation
11.1. Users have a 14-day right of cancellation. The right of cancellation shall also expire for a service when we have provided the service in full and as soon as we have started actual delivery of the service, once you have given your specific consent to this and confirmed at the same time that you are aware that you will lose your right of cancellation upon complete fulfilment of the contract by us. The relevant policy is set out in our order form. The cancellation policy contains more detailed information.
12. Final provisions
12.1. Should any individual provisions of this contract prove to be or become invalid, this shall not affect the validity of the other provisions. It is hereby pointed out, in accordance with section 33 para. 1 BDSG (German Federal Data Protection Act) and section 4 of the Teledienst Datenschutz-Verordnung (German Teleservices Data Protection Ordinance), that users’ data is processed by machine in machine-readable form.
12.2. The law of the Federal Republic of Germany applies. This also applies to the registration of users from other countries. The place of jurisdiction is based on the registered office of the provider.
2019-04-29 – §3.3 "(…) upon payment of the flat-rate relocation fee applicable to the relevant tariff (…)" was deleted. Flat-rate relocation fees are no longer charged.