Terms of Service

emerion WebHosting GmbH (called emerion)

Terms of Service v1.2

It is understood that these terms of use and conditions (collectively, the “Agreement”) apply to all services provided by emerion, even if not explicitly stated. The terms “emerion,” “us”, “we”, ours” refer to emerion GmbH, and anyone using our services enters into a business relationship with emerion and will in the following be referred to as “user”, “you”, “customer”.

1. Acceptable Use Policy

Any services provided by emerion are offered for an indefinite period of time. Basis for using these services are the terms of use, which are accessible on the emerion website during the ordering process. By confirming an order the user automatically agrees to the terms, which apply as long as emerion offers services to the customer. The terms of use and conditions may be accessed at any time on our website and customers will be informed of any changes to the agreement.

2. Fair Use Policy

“Fair Use” refers to the usage of the Internet and system resources with respect and without harming other Internet users and their rights through one’s own behavior. The user acknowledges that he or she is aware of common rules and regulations, accepts, and adheres to them even if there may not be any written regulations.

3. Order and service period and activation

3.1. Order activation
Orders of services are activated as soon as we receive a confirmation. For new orders signed confirmations are required, which can either be emailed or faxed. All other orders in that same account are processed automatically as soon as the online ordering process is finished. To confirm online transactions the user has to identify him or herself with a valid credit card, and be approved by credit card authorization. Services can only be ordered online. When ordering a service an account that includes all information submitted by the user, will automatically be generated.

3.2. Service activation
Ordered services are activated as soon as all technical and administrative requirements are met. emerion will attempt to meet these requirements as quickly as possible within the time period noted on the website. However, emerion does not have an influence on third parties, which are also responsible to meet some of the technical and administrative requirements. The user cannot claim any right to specified processing times.

3.3. Service period of new orders
Ordered services are generally available from the day they were activated for an indefinite period of time. emerion will meet all technical and administrative requirements to provide the services.

3.4. Service Period of Up-and Downgrades
If you up-or downgrade a service within an active service period, the up- or downgrade will be activated on the day it was ordered and will be effective for an indefinite period of time.

4. Prices and Billing

4.1. Hosting Services

Services that are offered indefinitely are priced per month. Each new account has a billing period of 3 (three) months, which can be changed to 6 (six) or 12 (twelve) by the customer. If a new account is opened a bill is created on the first of the following month. The selected billing period is the minimum contract period and is used for periodic bills, which are created on the 1st of each month. These periodic bills include any hosting services that are in the account at the time the bill is created. The bill includes services that are charged in advanced and subsequent charges of pro-rated hosting services that were ordered during the last billing period.

In case of a Cancellation of services or a transfer there is no reimbursement for the current billing period. One time offers are marked as such and are billed right away on the day the service is activated.

4.2. Domain Fees
Domain fees are billed for a year in advance. For some domain names (for more information go to our website) we charge a domain fee for two years. The domain fee includes the annual administrative work for the domain name and the renewal fee. The domain fee is not the same as the annual fee charged by the registry.

For any new orders (registration or transfer) we charge a registration fee and a domain fee for a year in advance. The service period begins at the day of the order and is not adjusted to the registry’s billing periods. Any domain hosted by emerion will be renewed automatically on the expiry day, which you can find in your ControlPanel under “current services”. To prevent a renewal of the domain you will have to cancel the domain or deactivate the automatic renewal option at least one day before the expiry date.(Note, this is possible only for some domain names)

4.3. Price Changes
If the price for a service, which is provided for an indefinite period of time, changes, the new charges will appear on the next billing cycle. If new services are ordered the new price applies at the time the service is activated. Credit or subsequent charges are not possible for services that are charged in advance. If prices increase emerion will inform users beforehand. However, if prices decrease emerion does not have to inform users.

4.4. Charges for up and downgrades
In case of a downgrade you will receive a pro-rated credit as soon as new services are activated. In case of an upgrade you will receive a subsequent pro rated charge as soon as new services are activated. Both, credit and subsequent charges are added onto the next periodic statement. For some webhosting plans there is also an additional set up fee. Please see information about set up fees in our product description. You will also receive information about set up fees in your Control Panel during the order process of your up or downgrade.

4.5. Statements and conditions of payment
You will receive an email with a detailed statement. We can send a payment form per mail upon request. Individuals and Austrian companies with residency or company residence in Austria can pay with debit, credit, or payment forms. Individuals or companies outside of Austria or Germany can only pay with credit card. emerion does not issue any cash discounts.

4.6. Charges for late payments
It is agreed that in case of a late payment 12 % interest, fines, cost of administering fines, postage fees, fees for blocking and unblocking an account, as well as all other necessary charges of debt collectors, may apply. Statements that reach the debt collector will include all open charges of the account, even if they are not due yet.

5. Domain registration

emerion is responsible for registering a domain at the respective registry and has to adhere to its terms. Through ordering a domain name the customer authorizes emerion to register the domain at the respective registry and the customer agrees to the terms of use and policies of the registry, the Reseller Agreement (http://www.emerion.com/us/domain-policies/registration-agreement) and the ICANN Registrant Rights and Responsibilities (http://www.icann.org/en/resources/registrars/registrant-rights-responsibilities) and in case of the registration of an .at domain name to the Terms of Services of nic.at (http://www.nic.at/en/service/legal_information/terms_conditions/). As long as emerion provides services for a domain, the domain can only be administrated and managed by emerion. The rightful user has access to the domain in his or her ControlPanel and can make changes if desired.

5.1. Domain owner
The person who orders the domain is automatically the domain owner and has all the rights to his or her domain name. Emerion only double-checks the syntax and form of information submitted during the registration, but not the content. This information will be used to register the domain exactly as entered.

5.2. Brand Names, Copyright
emerion assumes that you have legal rights to a name if you register it as a domain. If there is a conflict between two parties it is the responsibility of these parties to resolve the dispute. Neither emerion nor the registry is responsible for solving any legal arguments. In the case of a conflict we can merely give out contact information since these are already publicly accessible. By ordering a domain the customer agrees to adhere to legal regulations and especially to copyright laws. Neither the registry nor emerion is responsible for confirming and proving a customer’s right to a name. However, we may decline a domain order without explanation if we suspect a copyright violation. The applicant is obligated to keep emerion and the registry free of any legal harm or charges in case other third parties have been harmed through a copyright violation. Ownership of a domain does not result in the entitlement to any further rights.

5.3. Domain queries and availability of domain names
The results of a domain query do not render an entitlement to the domain name. We receive information about the availability of a domain from name servers and the respective WHOIS at the time of the request. When checking the availability of a domain name we do not consider names that are in the process of being registered and thus are neither in the WHOIS database nor on any name servers. emerion guarantees that we do not log which domain names are checked and also do not give out any information to third parties. Appointing a domain is based on the “first come first served” principle and depends on the date and time we receive an order. Yet, this does not automatically give you the right to a name, because in the end the registry decides who will receive the domain name.

6. Cancellation

Services offered for an indefinite period of time can be cancelled if the following conditions are met:

6.1. User Cancellation
A user can cancel services at any point and does not have to give any reasons for his or her decision. Charges for services that were billed in advanced will not be credited. The amount of the invoice is due in full even if services were cancelled shortly after the invoice was created.

6.1.1. Cancellation of .at domains
According to the terms of use of the nic.at .at domains can only be cancelled with a written Cancellation through the domain owner. Thus, in order to cancel an .at domain for you we will need to receive a signed Cancellation. You can find the Cancellation form online or request one from us. Hosting services as well as the domain name can only be canceled after we receive the signed confirmation. Services provided by emerion will be canceled with the end of the current billing cycle. .nic.at will cancel the domain name at the end of their billing cycle.

6.1.2. Cancellation of. ch domains
Cancellation of a .ch domain has to be confirmed directly with the registry “Switch”. emerion will forward your request to cancel the domain name and the registry will directly contact the domain owner. The cancellation can happen either right away or with end of the current billing cycle. Emerion can cancel hosting services with end of the current service period once the registry has approved the cancellation.

6.1.3. Cancellation of .de domains
The cancellation is done online. The user will receive an email containing a cancellation link. The cancellation is only valid if it is properly confirmed by using this link. Services provided by emerion will be cancelled with the end of the current billing cycle, not sooner. emerion is not allowed to cancel the domain at the registry. Thus we can only give the domain name back to the registry, which will then contact the domain owner directly to discuss how to further process the domain. If a .de domain is not cancelled directly at the registry, .nic.de, the registry will host the domain on its servers and will charge the domain owner directly.

6.1.4. Cancellation of other top level domains (e.g. .com, .net, .org)
The Cancellation is done online. The user will receive an email containing a Cancellation link. The Cancellation is only valid if it is properly confirmed by using this link. Services provided by emerion will be canceled with the end of the current billing cycle, not sooner. Yet, upon request, we can also cancel services immediately. We will not renew the domain after the service period has ended and the domain will expire at the registry.

6.1.5. Domain transfer to another provider
Domains are protected from unauthorized transfers if the respective registry supports such a registrar-locking. If a domain is to be transferred away from emerion the account owner has to request to disable the registrar locking. The new provider is responsible for successfully transferring the domain away from emerion. Through a domain transfer of services provided by emerion are automatically cancelled. 24 hours after a domain transfer has been confirmed we will cancel any services connected to the domain. Charges for services that were billed in advance will not be credited. The amount of the invoice is due in full even if services were cancelled shortly after the invoice was created.

6.2. Cancellation of services through emerion

emerion can cancel service under the following conditions:

6.2.1. Failure to pay for services
If we do not receive the amount due for open invoices 10 days after the last fine was created we will cancel services immediately. If the customer keeps on failing to pay, the account will be deleted permanently and emerion will take legal actions.

6.2.2. old user information, information that is not up-to date
If the user fails to manage, and up date his or her information regularly (as discussed in point 7) and emerion is unable to contact the user after intensive research, emerion may temporarily or permanently cancel the account.

6.2.3. Abuse of the Fair-Use-Policy
If we receive complaints from other customers and if it is apparent that a user is violating the fair use policy, we will issue a warning. If the violation continues despite the warning we will immediately cancel services and delete the user’s account.

6.2.4. Violation of the Anti-Spam Policy
If a user is violating the Anti-Spam-Policy emerion may cancel all services and delete the user’s account without prior warning.

6.2.5. Abuse of technical settings
If a abuse occurs (as explained in Article 10) due to lack of knowledge, emerion will educate the user about his or her behavior and issue a warning. If the abuse occurs repeatedly emerion may immediately cancel services and delete the user’s account. If the abuse is an acute threat to the entire system emerion reserves the right to delete the account without prior warning.

6.2.6. Legal violations
If a user receives legal charges and is sentenced due to activities related to his account, or if we receive notice that activities related to the account violate laws and regulations, and if we agree after careful investigation, we may cancel the account immediately and cancel all services connected to the account.

6.2.7. without explanation of reason
emerion reserves the right to cancel services with a notice of two months, either per email or written notification.

7. Information and data

7.1. Customer information, registration data
During the order process the user is responsible to submit correct, truthful, detailed, and current personal and/or business information (generally referred to as “user information”). This information is used to create an account and the user is the account owner. The account owner is responsible to keep information up to date in his or her Control Panel. The entered information is used for registrations, bills, and as contact information.

7.1.1. User authorization
Login information (account number and password) will be sent to the email address entered during the order process. This is the email address emerion uses to authorize the customer. If the user’s email address changes it is his or her responsibility to inform emerion about the changes. This can be done online in the ControlPanel. In case changes cannot be done in your ControlPanel, the customer has to identify him/herself through his new email address. emerion will prove the customer’s identity and note the process in the customer’s account.

7.1.2. Publication of user information
User information is published only if necessary for technical services, such as the domain registration. We will only publish the information that is important for the services that have been ordered. With your order you confirm to have your information published in the respective WHOIS-database. Other than that, emerion will never publish customer information.

7.1.3. Sharing customer information with third parties
We only share customer information as described in Article 7.1.1. emerion will never give customer information to unauthorized third parties. If a third party authorizes itself through account login and password per phone or email, the third party will receive customer information. Exceptions to this are law suits or legal investigations. In such a case, customer information is only shared with the inquiring institution.

7.1.4. Liability for customer information
The user is liable to provide correct information and is responsible to keep it up dated. emerion doe not process any changes unless a customer requests that we change his information. We will only answer to this request if the customer is unable to access his or her ControlPanel to make the desired changes.

7.2. Login Information
Login information refers to the information needed to access your account, and information needed to access all technical services that have been ordered. emerion only gives out login information per email (discussed in Article 7.1.1.). The account-owner can pronounce other people who should gain access to the account and/or single or all technical services. You have to create a Sub-Account in your ControlPanel for each person that should gain access to the account and/or single or all technical services.

7.2.1. Liability for Login Information
The account owner is responsible for all the activities in his account and is solely liable for login information for technical services, as well as, login information for Sub-accounts, that can be accessed in the ControlPanel. In case the account owner suspects an unauthorized access to his account his or she has to inform emerion immediately. Moreover, the account owner is aware that he or she is liable for any possible damages effecting emerion or other users because a third party used the account or the connected login information.

7.3. Data of contents that emerion processes and saves on servers and networks
Data of content is any information the user publishes or sends privately. emerion is not required to verify the accuracy of contents and accepts no responsibility for the correctness, appropriateness, and quality of information. The user is aware that by using services from emerion he or she may come in contact with content he or she may find offensive, harmful, obscene, unlawful, or disturbing in any other way. emerion accepts no responsibility to verify any content or to take legal actions to prevent the publication of such content. However, we reserve the right to take technical measures to prevent distribution of questionable content as previously classified.

7.3.1. Liability for data of contents
Only the person who produces and publicly or privately distributes content in form of data, information, texts, softwares, music, sound, pictures, graphics, videos, news, and other contents is responsible for this data. This means that not emerion but the respective user assumes responsibility and liability for any content. We inform users that by using guest books, chats, emails or bulletin boards on external websites they also provide other personal data. This is solely under the user’s obligation. emerion does not accept liability for any published data or information.

7.3.2. Sharing of data and information
Websites, guest books, chats, as well as the usage of bulletin boards and newsgroups are considered to be public. Such data can be used by emerion and other third parties. Users can be identified with their name, except when a user specifically requests not to have his name made public.

7.3.3. Links to websites of third parties
Our customer’s websites, as well as, our own may contain links to other websites. Neither the customer nor emerion is responsible for the website’s content, availability, and functionality. Neither customer nor emerion identifies with any of the content of linked sites and we do not accept any liability.

7.3.4. Illegal data and information
Hereby emerion expressly makes clear that under the provisions of the pornography law, the prohibition law and the relevant criminal law, mediation, distribution and exhibition of certain contents are subjected to legal restrictions, or is prohibited. The user agrees to abide by these laws and warrants the sole responsibility for such compliance towards emerion. emerion is not responsible to check for illegal content. If emerion is informed of illeagal content by a third party to illegal content, emerion will follows such accusations and check data on its legality. If displayed contents are confirmed as illegal they will immediately be withdrawn from public access, the related account and any related services will immediately be deleted. Users are prohibited to use the services of emerion for any unlawful purpose.

7.3.5. Advertisement on websites and in emails
Advertisement on customer’s websites and in their emails is a form of solely the customer’s business or other third parties. This business relationship is only between the customer and other third parties. emerion does not accept any liability.

7.4. Connection data
Connection data is information created through usage of emerion’s systems and may contain user information regarding the user’s account. We guarantee that only data that is relevant to the technical functionally of services is recorded. The user agrees to a temporarily recording of his or her information.

7.4.1. Analysis of Connection data
emerion analyses context data that is important for technical reasons, and reserves the right to analyze any other data but does not have to do so. The user agrees to the analysis of context data.

7.4.2. Sharing of connection data with third parties
In order to open connections we are required to share information virtually with others. This information contains necessary technical details regarding user accounts. The user accepts that this information is crucial for providing services. Other context data is generally not shared with third parties, not even upon their request. Exceptions are made, however, in legal cases and if we receive a judicial notification. In this case we share information only with the inquiring institution if the data is still existent. Also users can request context data. emerion will share all existing information regarding an account if the user can identify him or herself as authorizes user (account owner).

7.4.3. Availability of connection data
emerion keeps and archives connection data for an undefined period of time, but only as long as necessary for the administrative and technical operations. emerion is not obligated to archive any data. No one can claim the availability of connection data. emerion is not required to keep complete records, or to save records for a definite period of time.

7.5. Data regarding monetary transactions
Data necessary for monetary transactions are only transmitted over secure connections (Secure Socket Layer, SSL).

7.5.1 Usage of monetary transaction data
Information necessary to process electronic payments are only requested if they are needed to successfully complete the transaction. The information will be used at the time of the transaction and transmitted to the authoritative bodies of the respective payment method. The user agrees to the transmission of this data. Data is only transferred over a secure connection; either point-to-point or SSL.

7.5.2 Storage of monetary transaction data
We only save those pieces of monetary transaction data that are required for the successful completion of the transaction. This information is stored for an indefinite period of time. To delete only single, already completed transactions is not possible because they are part of the complete transaction data of third parties (authoritative bodies). If the transaction data involves information required to order services provided by emerion that are paid with credit card, the user agrees that emerion stores the information in its billing system.

8. Access to and usage of the emerion WebHosting System

By using services from emerion the user receives access to emerion’s systems.

8.1. Access through the network
Systems can only be accessed through the network and the provided gates, protocols, and interfaces (ControlPanel)

8.2. Physical access
Users of services cannot physically access our systems. Only authorized service personnel and technical maintenance personnel of respective facilities have access. D This also applies to equipment and machines owned by the user or a third party that integrate these machines into the network of emerion to offer his or her own service over the network and/or emerion’s hosting system.

9. System and data security

emerion secures networks and web hosting systems with hardware and software to protect the stored data and accounts. However, emerion is not responsible if someone illegally gets a hold of this information or accounts, and abuse and use it for different purposes. The account holder cannot sue emerion for any damages resulting from the use of a third party. The willful violation of emerion’s system or network security is an abuse of technical devices according to point 10.1 of the Agreement and will be prosecuted.

9.1. Physical Security
The physical security is subject to the provisions of emerion facility at the site of the hosting system and is given through the security of the providing facility and access control.

10. Abuse

The abuse of technical devices includes all actions that aim at gaining access to the systems or data of emerion users or emerion itself. These actions in particular are scanning our system security, data and traffic sniffing, and other known attacks, as wells mail-bombing, flooding, and the like to overload systems. The disproportionate use of our system resources also classifies as abuse. This includes, but is not limited to, a heightened use of traffic and CPU power and other activities that threaten the security and stability of the entire hosting system. In case of abuse of technical devices emerion will clarify whether the abuse was caused intentionally or unknowingly. emerion is entitled to delete the user’s account with immediate effect and discontinue services if a deliberate or an unintentional abuse persists after emerion has already informed the user. emerion will charge the account holder for the costs of detecting and tracking activities, the interruption of the connection and any associated repairs based on an hourly rate.

11. Warranty, Liability and Indemnity

emerion will exhaust all economically reasonable resources to offer all services without downtimes and interruption. The use of services is at your own risk. emerion does absolutely not make any expressed or implied warranties; and does especially not make any warranties about merchantability, suitability for particular purposes, legality and ownership rights, business customs and practices. emerion does not make any warranty for the consistency and accuracy of services and that stored data will be available under any circumstances. The customer shall not be entitled to additional reduction in fees and agrees to completely keep and holds emerion safe and harmless. emerion is not liable for any resulting damages and loss of profit, nor responsible to bear the costs for any property damages according to paragraph 9 of the liability law.

11.1. Disclaimer for third party practices
emerion monitors services within the emerion network, but does not and is not able to monitor other parts of the Internet. The flow of data primarily depends on the functionality of third parties or Internet provider. Certain measures of third parties may result in situations, which interrupt or damage a customer’s Internet connection or services offered by emerion. While emerion will exhaust all economically reasonable resources to offer all services without downtimes and interruption to prevent such situations, we cannot guarantee or warrant that such situations will not happen. emerion is not liable for any such events or any other related events.

11.2. Keeping and holding emerion completely safe and harmless
The user agrees to hold emerion, its employees, and business partners safe, harmless, and completely free from any claims and liability for any loss, damages, expenses, costs, and fees (including reasonable attorney fees), which resulted from third party usage of services or contents. This also includes the sending of mass emails, offensive, bothersome, and unlawful demeanor, infringement of usage restrictions and prohibition of mass e-mails, and intentional damaging of emerion’s systems within the system and network security, which are directly or indirectly traceable to the account-holder, vice account-holder, or appointed user.

12. Anti-Spam-Policy

emerion does not tolerate “unsolicited broadcast email and unsolicited commercial email” (in short SPAM) sent through customers or customers of resellers that enable the sending of SPAMS. All customers are prohibited to send spam mail using systems that are part of the networks belonging to emerion. emails sent from servers in the emerion network have to contain a valid sender address else sending the message will be prevented. emerion operates mail servers with good conscience and utmost diligence and shuts open relays. customer using their own servers are also responsible to shut open relays. Infringement of these conditions will lead to an immediate Cancellation of the account and services. Furthermore, any customer who operates his or her own mailserver is responsible for setting up and regularly checking the email address postmaster@{domain}. If, despite all these measures, it is still possible to send spams using servers in the emerion network or servers operated by an emerion customer in his own network, the customer is responsible to give all information regarding the spam attack to emerion, which will then share it with the respective authority. Customers of emerion, as well as their customers and representatives agree to strictly adhere to the proper shipping of emails. It is moreover prohibited to sell or use spamming software using systems in the emerion network. It is prohibited to send spam emails under the name or under a domain hosted by emerion. In such a case emerion will persecuted the account holder and immediately terminating any services. In the case of infringement emerion is entitled to demand a penalty payment of EUR 2,000.

13. Reseller, Reselling

The account-owner may resell services from emerion. The reseller is responsible to make his customer aware of emerion’s terms of use which may be accessible on the reseller’s website. The reseller may call himself RSP “Reseller Service Provider” and is a partner of emerion. Resellers are also responsible for making all registration agreements of respective registries available to their customers, and may not be altered. emerion will not directly contact a reseller’s customer, unless it is necessary for providing a technical service, e.g. a domain transfer. emerion moreover guarantees not to solicit a reseller’s customers. Resellers are responsible for offering support to their customer; emerion does not offer support to a reseller’s customer. Only resellers can use emerion’s first and second level support. Resellers are user of all services they provide for their customers and are liable for them. Both, resellers and their customers are responsible to adhere to emerion’s terms of use as long as both use services provided by emerion.

14. Final provisions

Disputes arising on the basis of this contract concern the Commercial Court of Vienna (Handelsgericht Wien). This is not applicable for consumer transactions under the Austrian Consumer Protection Act. emerion may give all responsibilities and/or the entire contract to a third party and is therefore free from any debt. This does not apply to consumer transactions. emerion may authorize other businesses to provide services at its own risk. Information is considered delivered if it has been sent to the most recent announced address or email address.

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