Joker.com
- Version 01.12.2003
General Terms and Conditions of Business
and Registration
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Contractual Basis
a. The present Terms stipulate the general
terms and conditions for the registration
and extended validity of "registered names",
hereinafter referred to as "domain" (for
example "yourdomain.com"), and changes to
the data associated with the same.
On conclusion of the registration
procedure, the Terms become an integral
part of the contract of registration. Any
other terms and conditions, such as those
of the Client, do not become part of the
contract.
The registration of domains
is undertaken by the Registrar in the central
databases administered by "registries".
The ordering process takes place using a
secured SSL connection.
b. The contractual relations
come into being between the Client in the
first instance and EIS AG, Baarerstr.8,
CH-6300 Zug in the second instance.
c. EIS AG shall appoint
CSL Computer Service Langenbach GmbH, (CSL
GmbH), Rathausufer 16, D-40213 Düsseldorf,
as Registrar.
CSL GmbH is a Registrar
accredited by ICANN (Internet Cooperation
for Assigned Names and Numbers) for domains,
for example, among the top-level domains
".com", ".net" and ".org".
d. On completion of the
prescribed registration procedure in the
version applicable at the time of registration,
the registering person (Client) accepts
these Terms in their entirety.
e. The Client confirms
that he is of full age.
Area of Application / Alteration
of the Contractual Terms
a. EIS AG provides its services solely on
the basis of the present Terms and any Annexes
hereto as well as subject to any registration
provisions prescribed by the Registrar of
ICANN or the relevant Registry that are
to be complied with for performance of the
contractual relations.
b. ICANN is entitled to
pass rules that affect registration relations
with clients. The same applies to changes
in the terms and conditions of the relevant
registries. For these and other reasons,
the need to alter the present Terms may
arise. In such a case, the Client shall
be notified by e-mail of the changes and
the associated possibility of objecting
to these changes in writing within one month
of receipt. Unless the Client objects, contractual
relations continue subject to the changed
Terms. If an objection is made within the
specified period, EIS AG has the right to
terminate the contract subject to the requirements
of Para. 11.d. below.
c. EIS AG is entitled
to undertake or accept changes to its own
service and technical environment and those
of the Registrar without notifying the Client
if contractual services are not affected
or the changes take account of technical
progress.
d. If services are provided
by EIS AG or the Registrar free of charge,
the Client has no right to their further
availability. EIS AG has the right to terminate
these services at all times without notice
and without the Client acquiring any claims
to compensation, a reduction in price or
refund as a result.
Inquiry into the Availability
of a Domain / Consequences of Non-availability
a. Prior to registration,
an inquiry is undertaken into the availability
of the requested domain. The information
provided free of charge in this respect
is based on the data available to EIS AG
and merely reflects the valid data status
in the Registry database at the time of
the inquiry.
Therefore, no guarantee
can be given that the information is correct
or complete.
b. In the event of the
non-availability of the domain, EIS AG is
entitled to be prematurely released from
the contract and is not obliged to provide
the contractual services. EIS AG shall notify
the Client without delay and refund any
consideration already provided without delay.
Services by EIS AG
a. EIS AG sends the data received from the
Client to the Registrar so that registration
can be undertaken - subject to the availability
of the domain name - in accordance with
the application.
b. If the Client applies
for several domains, and if registration
of all domains is not possible due to a
lack of availability, EIS AG is entitled
to make part performance - registration
of the available domains.
c. At the request of the
Client, EIS AG transmits requests for modifications
with regard to registrations to the Registrar.
The domain cannot be transferred to a different
Registrar within the first 60 (in words:
sixty) days after first-time registration.
d. If the Client prefers,
EIS AG undertakes name server services in
connection with the domain, that allow the
domain to be retrieved using the "Domain
Name System" (DNS) as well as optional web
forwarding.
e. EIS AG does not undertake
any examination of the data provided by
the Client for their completeness or plausibility.
EIS AG reserves the right to process or
arrange processing only of correct and complete
applications that satisfy the requirements
made during the registration process.
f. EIS AG pays the registration
fees charged to it by the Registry and/or
the Registrar and undertakes ongoing maintenance
of the domain, i.e. extends domain registration
and, if the Client so requires, updates
the database during the contractual relations.
g. The service shall be
provided 24 hours a day with average availability
in terms of time of 99% for the year.
h. The service owed is
the operability of the EIS AG technical
infrastructure. Use of the service additionally
requires the use of third party networks
and technology over which EIS AG has no
control, and, therefore, which EIS AG is
unable to guarantee.
Duties of the Client /
Consequences in the Event of Breach
a. The Client is obliged to send a subject
status query using the support-page at www.joker.com
if the Client receives no feedback from
EIS AG within three working days of completing
the registration procedure, in order to
allow subsequent investigation into the
status of domain registration.
b. The Client is obliged
to ensure and be responsible for ensuring,
to the best of the Client's knowledge and
belief, that the subsequent direct or indirect
use of the domain resulting from registration
does not interfere with rights of third
parties and he gives an assurance that no
rights of this kind are infringed.
c. The Client is obliged
to notify the following data truthfully
and in full at the time of registration:
First name and surname
of the domain holder, postal address, e-mail
address, telephone number and fax number
(if available);
In the event that the domain owner is a
legal person: First name and surname of
the legal representative and a contact person
authorised to make decisions;
Names and IP addresses of the primary and
secondary name servers for the domain applied
for;
First name and surname, postal address,
e-mail address, telephone number, fax number
(if available) of the "Technical contact";
First name and surname, postal address,
e-mail address, telephone number, fax number
(if available) of the "Admin contact";
First name and surname, postal address,
e-mail address, telephone number, fax number
(if available) of the "Billing contact"
(contact person responsible for payments);
d. The Client is obliged to notify any changes
in the information listed in Para. 5.c during
the term of the Contract to EIS AG without
delay. Information of relevance for the
contract is sent primarily by e-mail, so
that it is particularly important to have
a valid e-mail address, which is hereby
contractually agreed.
e. The Client is obliged
to reply to inquiries from EIS AG regarding
the accuracy of the information specified
in Para. 5.b and c within a period of fourteen
calendar days and to correct any data that
is incorrect.
f. The Client is obliged
to call up e-mails sent to him by EIS AG
on the next day but one at the latest to
enable him to ensure his awareness of the
information contained in messages from EIS
AG.
g. Also in the event that
the Client has allowed a third party to
use the contractual domain, he himself is
the domain owner and is obliged to maintain
the stock of data as per Para. 5.c so that
problems arising in connection with the
maintenance and operation of the domain
can be resolved in the short term.
h. If the Client has licensed
the use of the contractual domain to third
parties, he nevertheless acknowledges his
responsibility for claims and damages arising
as a result of the unlawful use of the domain,
regardless of whether he is at fault. Furthermore,
he is obliged to disclose the identity of
the licensee to EIS AG and to the claimant.
i. The Client must refrain
from taking any measures that contravene
the applicable law of the state in which
the breach of law takes place. In particular,
he must ensure during the use of the contractual
service or domain that
the content retrievable
using the domain carries a provider ID if
it concerns teleservices or media services;
no unsolicited e-mails are sent to a large
number of recipients using an e-mail address
that corresponds to the contractual domain;
j. The Client must ensure the secrecy of
the access data sent to him. Any loss of
data must be notified to EIS AG immediately.
If the Client passes on the data to a third
party or is otherwise responsible for the
use of the service by a third party, he
is liable for any resulting damages or claims
arising on the part of EIS AG or third parties.
Domain Disputes / UDRP
Procedure
a. Indispensable requirement for the registration
of domain names is that the Client acknowledges
the Uniform Dispute Resolution Procedure
(UDRP-Procedure) in the event of domain
disputes. The agreements between EIS AG
and the Registrar, as well as those of the
Registrar with ICANN and with the registries
responsible for allocating the domains,
require an agreement on this procedure with
the Client. The procedure may be subject
to change during the term of the contract.
b. The Client declares
his agreement to the application of the
UDRP procedure in the event of disputes
involving a situation where a third party
approaches EIS AG or the Registrar claiming
that the registration or use of the domain
prejudices his rights.
c. The major principles
of the procedure are outlined below. By
means of the Uniform Dispute Resolution
Policy (UDRP) that is only available in
the English language, ICANN, as administrator
responsible for the organisation of the
"Domain Name System", provides a procedure
that can be used to settle disputes about
rights to a certain domain. Trademark holders
can apply for transfer to themselves of
domains identical to or able to be confused
with their trademarks against persons that
have registered such domains for themselves.
The arbitration body shall, however, only
allow such an application, firstly if the
present domain owner has no rights of his
own to the name (e.g. if he himself does
not hold trademarks or neither he nor his
company bears this name) and, secondly,
if both registration and the use of the
domain have taken place with malicious intent.
Such intent is presumed e.g. if the domain
owner has only registered the domain for
the purpose of selling it to the trademark
holder and later offers it for sale to the
trademark holder or he has it registered
expressly for the purpose of exploiting
the trademark for his own economic purposes
and uses it accordingly.
d. In the arbitration
proceedings, the trademark holder must show
evidence of his own legal position and demonstrate
why the current domain owner has no rights
of his own to the domain and what form the
malicious intent takes in his registration
and use. The domain owner is given an opportunity
during the proceedings to outline his own
legal position. Under the rules of the UDRP,
he is allowed a period of 20 days after
notification of the proceedings by the UDRP
Provider in order to do so. Under the UDRP
rules, the language to be used is always
that in which the registration agreement
has been made, unless the arbitration body
holds a different rule to be more appropriate
or the parties have agreed on different
language.
e. The arbitration body
normally decides on the basis of the written
statements submitted to it whether or not
it considers that the claim of the trademark
holder is justified. If it comes to the
conclusion that the domain name is to be
transferred to the claimant, a period of
10 working days is allowed in which the
unsuccessful domain owner can take the matter
to court. If this takes place, the decision
of the arbitration body is not implemented,
the previous domain owner remains owner
of the domain. If no court is seised, the
responsible Registrar implements the decision
of the arbitration body on the expiry of
this period, i.e. the domain is transferred
to the successful trademark holder.
f. The arbitration proceedings
can be applied for from any UDRP Provider
admitted by ICANN (see also the list in
http://www.icann.org/udrp/approved-providers.htm).
As soon as the arbitration proceedings have
been applied for, and for the entire duration
of these proceedings and for a period of
15 working days after a decision of the
arbitration body, the transfer of the domain
to third parties is only admissible and
possible subject to their agreement to be
bound by the decision of the arbitration
body. The same applies in the event that
court proceedings are instituted with regard
to the rights to the domain during the arbitration
proceedings or within the period of 15 working
days after receipt of the decision of the
arbitration body until a final and non-appealable
court decision.
Exemption from Liability
If third parties take action against EIS
AG based on legal infringements claimed
against the Client or third parties in connection
with the contractual service, the Client
is obliged to indemnify EIS AG, its employees,
the Registrar and the relevant Registry
(including Verisign Inc.) and the natural
persons affected against any damages if
he is responsible for the underlying breach
or is subject to a restrictive covenant.
This includes the costs of reasonable legal
action and expenses.
Prices, Payments, Default
in Payment
a. The prices published on the website www.joker.com
at the time of conclusion of the contract
apply.
b. The payments to be made
by the Client must be made exclusively in
advance and by credit card.
c. The Client is notified
of his payment duty 30 days prior to the
extension of the domain. If timely payment
has not been made before the expiry date
of the relevant contractual period, EIS
AG is entitled to arrange for the deletion
of the domain.
d. If the Client fails
to meet his payment obligations in spite
of receiving a reminder specifying a final
deadline for performance, or if EIS AG is
notified of or sent a charge-back notice
by the credit card company or other authorised
agent, EIS AG is entitled to proceed in
accordance with letter c. above.
e. If the Client prematurely
transfers the domain to another provider/registrar
or the contractual relations are terminated
for other reasons for which the Client is
responsible, there is no refund of any payments
already made.
Liability
a. EIS AG has unlimited liability at all
times for intent and gross negligence.
b. Liability for simple
negligence is excluded unless it concerns
the breach of essential contractual duties
or collateral duties of major contractual
importance (cardinal duties). In the event
of the aforementioned, simply negligent
breach of cardinal duties, liability is
limited to the amount of the typically foreseeable
damages.
c. The principles in Para.
9.b also apply in the event of tortious
liability.
Secrecy / Data Protection
a. The Client is aware and agrees that his
personal details recorded in the course
of the registration process specified in
Para. 5.c will be stored by EIS AG and passed
on to the Registrar and to the Registry.
Furthermore, the data shall be published
in the WHOIS database of the Registrar,
in the Registry and in the WHOIS databases
operated by EIS AG or third parties.
The Client declares that
consent has been given to data recording
and data transmission to the third parties
named in connection with registration. Otherwise
the Client is obliged to furnish consent
in written form and to submit it to EIS
AG on request.
b. EIS AG gives an assurance
that the data recorded shall not be used
for purposes other than those purposes notified
to the Client in the course of domain registration.
In particular, the data recorded may not
be provided to third parties for advertising
purposes.
c. EIS AG undertakes measures
of a technical and organisational nature
to prevent unauthorised access to data or
their being published, changed or destroyed
by third parties. Similarly the parties
recognise that absolute data security cannot
be guaranteed.
Contractual Conclusion,
Duration, Termination
a. The contract comes into being when EIS
AG confirms the order by e-mail.
The contract is concluded
for the duration of the registration requested
by the Client, however, for a maximum of
ten years. The Client has the opportunity
to extend the contract for a maximum of
10 years in each case.
c. If the contract is
not extended, it expires at the end of the
contractual term. In this case, immediate
loss of the domain is threatened.
d. This does not affect
the right of extraordinary termination for
an important reason. There is good cause
in particular if the Client
intentionally gives EIS
AG incorrect or unreliable information under
Para. 5.c;
contrary to the duty provided for in Para.
5.d, does not update the data specified
in 5.c to EIS AG and update the stock of
data;
contrary to the duty specified in Para.5.e,
does not respond within the specified period
to inquiries from EIS AG;
continues to breach his obligation under
Para. 5 even after being sent a warning
setting a final deadline;
if the Client is in default with the payment
of the contractual consideration and remains
in default even after being sent a warning
setting a final deadline.
e. If the Client requires that EIS AG transfer
the domain from another registrar to a registrar
appointed by EIS AG, domain registration
shall automatically be extended by the period
that specified by the Client, however, for
a maximum of 10 years.
f. The contractual relations
are terminated prematurely on the date on
which the Client arranges for the domain
to be transferred to a registrar other than
CSL GmbH, and on completion of the transfer
in accordance with the procedure prescribed
by EIS AG and/or CSL GmbH, as described
in the FAQ of EIS AG and/or CSL GmbH and
made the subject matter of the contract.
Miscellaneous
a. The Client has a right of withholding
or set-off only for counterclaims arising
from these contractual relations that are
undisputed or final and non-appealable.
b. EIS AG is entitled to
use third parties to provide the services.
Court of Jurisdiction and
Place of Performance
a. Agreed as court of jurisdiction for all
disputes arising from the use of the domain
or service of EIS AG is Zug, Switzerland
or the registered office of the Registrar
CSL GmbH and the courts of your domicile,
provided that this does not conflict with
any mandatory statutory provisions on jurisdiction.
Place of performance is
Zug, Switzerland.
Concluding Provisions
The application of the UN Convention on
Contracts for the International Sale of
Goods is excluded.
b. Collateral agreements,
amendments and supplements to the Terms
and the performance of the contract must
be in writing and the written form can only
be dispensed with by written agreement.
The written form is agreed to have been
complied with by send-protected e-mails.
Zug, 1 December 2003 |
