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XIRCA Reseller Service Agreement

HEXONET GmbH (HS) is the sole developer and operator of XIRCA System, which is a generic Product Ordering and Management System for Internet Services including Domain Names, Managed DNS, SSL Certificates, virtual and dedicated Rootservers and other similar products. XIRCA is not solely restricted to Internet based Services. XIRCA is currently is production ready and is expanding to accommodate additional products and services.

HS permits Customer the use of XIRCA according to these Terms and Conditions

  1. HS generally guarantees the availability of XIRCA 7 days a week, 52 weeks a year with a guaranteed mean annual availability of 97%, excluding times of scheduled maintenance or outages due to technical or other problems outside the direct control of HS that is in particular force majeure, acts of third parties, and all forces and circumstances that prevent a Server from having access to the Internet. In the event of a dispute over annual availability, the Customer must prove that HS is grossly negligent for any downtime.
  2. Planned Maintenance occurs Sundays between 00:00 and 04:00 UTC (midnight to 4am). Before a maintenance window is executed, HS will announce the maintenance time at least 14 days in advance through the HS Newsletter or within the control panel of HS.
  3. XIRCA allows the creation and management of users and subusers (SubResellers) who all have full access to the system within their own individual accounts. Customer understands and agrees that HS has no influence over the Customer’s own SubResellers; therefore any disputes over annual availability against HS by Customer or Customer’s SubResellers, the Customer must prove that HS is grossly negligent for any downtime.
  4. Any products used, registered, or ordered through XIRCA, such as Domain Names, SSL Certificate Orders, and Servers are subject to their own respective Product Service Agreements and pricing. Prices for each product are available for the Customer to review on the secured Control Panel provided by HS. Customer understands and agrees that HS has the right to modify the prices at HS’s sole discretion without notice.
  5. HS does not charge a fee to use XIRCA nor does HS impose a minimum revenue requirement from the Customer. Fees are only charged in conjunction with the use, registration or order of products. Customer understands that their account is charged when a product is used, registered, or ordered; therefore, it is the Customer’s sole responsibility to ensure the Customer’s account has sufficient and positive funds at all times; otherwise, HS at its sole discretion can suspend the Customer’s account or prohibit any transactions from processing.
  6. The Customer has the right close their account or request the balance of their account be paid out. Upon request, HS will immediately reimburse Customer the remaining funds back to their bank account, credit card or paypal account depending on where the original payment was made. Any fees to reimburse funds will be borne by Customer.
  7. This Agreement is indefinite and can only be terminated by express written notice by either the Customer or HS. HS may terminate this Agreement for the following reasons:
    • HS can no longer reasonable fulfill the service requirements for XIRCA
    • XIRCA is no longer economical / profitable for HS
    • If the Customer fails to comply with repeated requests from HS to stop using XIRCA in a specific manner that is harming the integrity of the XIRCA system
    • Customer enters into liquidation, bankruptcy, insolvency (whether compulsorily or voluntarily), is no longer able to pay or suspends payment of its debts, enters into an arrangement or composition with its creditors or convenes a meeting with its creditors, has a provisional liquidator, a trustee in bankruptcy, a receiver, administrator or administrative receiver appointed over all or a substantial part of its assets or it ceases or threatens to cease carrying on its business
  8. Upon termination of this Agreement, Customer understands and agrees that any prepaid services or products must be maintained until their expiration date and that no partial refunds will be provided.
  9. Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement.
  10. This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HEXONET.
  11. Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

Service Agreement Domain Names

By submitting a Domain Name registration through XIRCA, Customer agrees to be bound by the "XIRCA Reseller Service Agreement" and the following additional terms and conditions.

1. Object of Agreement

HEXONET GmbH (HS), is a technical mediator for Domain Registration Services between Customer and respective official Registries. HS has no influence over the distribution process of specific domain names, as third parties and Registries manage the process; therefore, HS offers no guarantee of the existence, availability, and acquisition of a registered domain for Customer.

Domains are administered and managed by various different, usually national organizations (Registries). Each Registry has different terms and conditions relating to the registration, management, and dispute process of their respective domains. HS can only and is required to simply inform Customers of these policies. Customer acknowledges and understands that registering a domain name through HS, not only bids them to all HS terms and conditions, including this Agreement, but also the terms and conditions of the respective Registries for which they have registered domains. Furthermore, the Customer acknowledges that the registration of the domain can be revoked due to policy violations at any time. These policies can be viewed on the HS website under http://www.hexonet.net/domainpolicies_eu.php When registering multilingual domain names, Customer understands that HS does not control such registrations and such multilingual registrations may be modified, interrupted or even terminated by their Registry without prior notice. HS offers no guarantee of the existence, availability, functionality and acquisition of multilingual domain names and registration of a multilingual domain is at the Customer's own risk. The use of a Trustee Service (Trustee) may be required for registration of domain for some Registries, which in such cases requires the Customer to agree to the respective Trustee Agreement.

2. Pricing, Duration and Termination

The Customer receive services through HS using a prepaid payment process, which requires the Customer to pay upfront for any service or product in its entirety. In the case of Domain Names, the Customer is required to pay upfront for a registration in either years or months. The exact expiration date of a Domain Name can be viewed from within the control panel of HS. The duration of service time for which a Domain Name is prepaid depends on respective Registry policies; however, in general, domain services start at the point of registration, when an incoming transfer (from another registrar) completes, or at the time a renewal request is made. Generally, registrations, transfers and renewals are prepaid from one (1) to ten (10) years, again depending on respective polices from each Registry.

The Customer's registered Domain Names with HS, if neither HS nor Customer confirms in writing to the other party, three (3) months prior to the expiration of a prepaid registration, shall be automatically renewed - prepayment is automatically withdrawn from Customer's account for another twelve (12) month registration of a Domain Name. The Customer understands that various Registries have different termination terms and conditions, as well as, operating policies, including how paid until dates (expiration) execute. Customer can view such information at HS through http://wiki.hexonet.net/.

Termination of a Domain Name must be initiated and submitted by Customer either through the Control Panel or through the API. Termination either explicitly submitted by Customer or resulting from a Registry dispute decision, Customer understands that no substitute domain or refund shall be provided. Should a Domain Name be terminated before its expiration date, the Customer also understands that no partial refunds are given.

The Customer understands they must at all times maintain a positive balance on Customer account with HS. Funds from the Customer's account will be used to cover the cost of Domain Name registrations or renewals. Customer acknowledges and agrees that if a Customer's account with HS does not have sufficient funds to renew expiring Domain Names, said expiring Domain Names will automatically be terminated (deleted) at HS or may possibly be handed back to the respective Registry. Any prepayment for a Domain Name by Customer that is not subsequently successfully registered will automatically be refunded back to the Customer's Account. Additionally, Customer maintains the right to request their Customer account balance (as long it has a positive balance) be paid out at any time.

3. Content

Customer guarantees that the registration of a Domain Name and the intended use, through HS, does not infringe the rights of third parties and that there are no other legal or factual obstacles to register the domain name, that the chosen name does not contradict morality and that the registration conforms to the registration policies of the relevant registry.

4. Limitations of Liability

HS cannot be held liable for loss of revenue or profits. HS is also not liable for Damages, Third-Party Claims and other immediate damages or any losses material or immaterial by Customer.

5. Domain Name Dispute Policy

The Customer agrees to clarify and settle any disputes in accordance with the Dispute Resolution Policies of the respective responsible Registry. The Customer also agrees to follow the Uniform Domain Dispute Resolution Policy (UDRP), currently to be found under http://www.icann.org/en/udrp/ for Registries that use UDRP to resolve disputes. Lastly, the Customer understands the dispute policies may differ depending on the official language of the respective Registry. The customer acknowledges and accepts that HS is bound to lock, cancel, or transfer a Domain Name - according to UDRP-regulations - if the Customer is involved in a dispute and Customer does not provide evidence within ten days after an Administrative Panel's decision, in a lawsuit commenced against the Customer in a Mutual Jurisdiction regarding the right to use the disputed Domain Name.

6. Entire Agreement

Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement.

This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HEXONET, and the XIRCA Reseller Service Agreement. Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

Service Agreement WhoisTrustee Service

By submitting a request for HS to use WhoisTrustee and WhoisTrustee Lite ("WhoisTrustee Services") services, the Customer understands and agrees that WhoisTrustee Services protects the privacy of domain name registrants by providing privacy registration for new and existing domain names, where the registrant owner of a domain name is replaced with the name of WhoisTrustee.com for the public WHOIS data. Additionally, the following terms and conditions apply for the Customer:

1. Subject of Agreement

The Customer understands and agrees to all the terms and conditions of this Agreement, but also the terms and conditions of WhoisTrustee.com Limited located at www.whoistrustee.com/legal.php

HS reserves the right to amend the terms and conditions contained in this Agreement at any time without further notice to Customer by posting the complete new Agreement at http://hexonet.net/tou_eu.php and becomes effective immediately upon such posting.

Customer agrees to comply at all times with the rules and policies adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") including the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the terms, conditions and policies imposed by their respective Registrar of the Registered Name.

Customer acknowledge and agree that HS may in its sole and absolute discretion, suspend, cancel, or modify the Services or use of the Services at any time.

2. Prices, Duration and Termination

The Customer receives services through HS using a prepaid payment process, which requires the Customer to pay upfront for any service or product. In the case of WhoisTrustee Services, the Customer is required to pay upfront for WhoisTrustee or WhoisTrustee Lite on a month by month basis. WhoisTrustee Services automatically renew on a monthly basis until explicitly deleted or if there are insufficient funds to renew the service. HS will not refund any paid fees for Trustee Services that are deleted before the end of its respective month.

Customer choosing or having WhoisTrustee Services canceled or deleted by HS for a domain name before its expiration understand and agree that the either personal information provided at registration will then be used for the publicly available WHOIS.

HS has the right at its sole discretion to suspend, cancel or modify the WhoisTrustee Service or to cancel at any time.

HS has the right to disclose the identity and other Personal Information, as well as, terminate or suspend WhoisTrustee Services for the following reasons, but are not limited to:

  1. failure to pay for the WhoisTrustee Services on time;
  2. required by law enforcement, government, or court ruling, requirement, regulation, or order;
  3. required by any of ICANN's standards, policies, procedures or practices, including the UDRP;
  4. required by ccTLD registry standards, policies, procedures or practices, including the respective registry's UDRP policy;
  5. to comply with any legal process served upon HS ;
  6. receipt of a legal complaint regarding the use, content or registration of a Registered Name;
  7. receipt of a formal request from an alternative dispute service provider;
  8. receipt of a third party complaint of illegal or morally objectionable use of the domain name engaged with transmitting SPAM, viruses, worms or other harmful computer programs;
  9. receipt of allegation of use of the service to conceal involvement with illegal, illicit, objectionable or harmful activities;
  10. receipt of allegation that the registration violates or infringes upon the legal rights of a third party, or any third-party trademark or trade name;
  11. that disclosure is necessary to further determine an allegation of breaching a law;
  12. deletion of a Registered Name;
  13. If necessary to avoid any financial loss or legal liability (whether civil or criminal) on the part of HS or any of its related companies and their directors, officers and employees from any and all third party claims; or
  14. If deemed necessary at the sole discretion of HS.

3. Limitations of Liability

HS cannot be held liable for loss of revenue or profits. HS is also not liable for Damages, Third-Party Claims and other immediate damages or any losses material or immaterial by Customer.

4. Entire Agreement

Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement.

This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HS, and the XIRCA Customer Service Agreement.

Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

Service Agreement Domain Backorders

By submitting a request for HS to attempt to register an expiring domain name when it publicly becomes available (Backorder), through XIRCA, Customers agrees to be bound by the "XIRCA Customer Service Agreement", "Service Agreement Domain Names", and the following additional terms and conditions.

1. Subject of Agreement

Customer understands and agrees that backordering a domain is simply a request by the Customer to HS, asking HS to attempt to secure the backordered domain if it subsequently becomes available for public registration.

Customer agrees that HS may or may not succeed in its attempt to publicly register the backordered domain on behalf of the Customer and that HS offers no guarantee in successfully acquiring or registering any domain whatsoever.

If HS receives multiple backorder requests for the same domain and if the domain is successfully registered by HS when it becomes publicly available, HS reserves the right to allocate the domain to any third party auction provider of HS's choice to ensure that the backordered domain is equitably released to the public (Equitable Distribution).

2. Prices, Duration and Termination

Placing a backorder request is free of charge, but applicable fees and refundable deposits, will apply throughout the backorder process. Three days prior to a backorder domain potentially being available for public registration, HS will withdraw a refundable deposit from the Customer's account, which will be used for payment, if the backorder domain is successfully registered by HS and Equitable Distribution does not apply.

In the event the Customer's account has insufficient funds to secure a deposit for a backordered domain, 24 hours before the domain becomes publicly available, the Customer's backorder request will be considered null and void. If HS fails to publicly register the backordered domain or if Equitable Distribution applies or if the Customer deletes the backorder request between 72 hours and 24 hours prior to the backorder domain becoming publicly available, then the deposit shall be automatically refunded back to Customer's account.

Backorder requests cannot be deleted during the 24 hour period prior to a backorder domain being publicly available, thus a refund of deposit during this period is prohibited.

HS is successful in registering a backordered domain when it publicly becomes available and Equitable Distribution does not apply, the deposit withdrawn from the Customer's account is immediately used for registration and ancillary fees for the backorder domain. Once the deposit is converted into registration fees, the ownership of the domain is immediately assigned to the Customer. Registration fees include the minimum registration term for the domain for a given registry. In most cases the domain will be registered at the respective registry for a one-year term, except for those registries that have longer than a one-year minimum registration term. HS will not refund any applied registration fees or backorder fees for a backordered domain that has been allocated into a Customer's ownership and account.

3. Limitations of Liability

HS cannot be held liable for loss of revenue or profits. HS is also not liable for Damages, Third-Party Claims and other immediate damages or any losses material or immaterial by Customer.

Domain Backorder Rating System. The Domain Backorder Rating System is a computerized algorithm that takes into account various numeric inputs to produce a purely mathematical gauge of a domain’s utility (historically how and how much it has been used). Factors that go into the rating may include domain class, historical traffic, link associations, etc. This rating has nothing to do with a domain’s value, quality or worth and should only be used as a mathematical starting point to investigate a domain more in depth if one wishes to do so.

IN NO EVENT WILL HEXONET BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE DOMAIN BACKORDER RATING SYSTEM RELATING TO DOMAIN BACKORDERING, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DOMAIN VALUE OR OTHER MONETARY EFFECT, EVEN IF HEXONET IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE DOMAIN BACKORDER RATING SYSTEM AND INFORMATION ON BACKORDERING IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE STAR RATING SHOULD NOT BE INTERPRETED AS A PROMISE OR GUARANTEE OF FUTURE DOMAIN MONETARY VALUE. CUSTOMERS AND RESELLERS USING THE STAR RATING OF A BACKORDER DO SO AT THEIR OWN RISK AND SHOULD SEEK QUALIFIED PROFESSIONAL AND INDEPENDENT ADVICE AS TO THE VALUE OF A DOMAIN NAME

4. Entire Agreement

Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement.

This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HS, and the XIRCA Customer Service Agreement.

Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

Service Agreement DNS Services

By utilizing the DNS Services through XIRCA, Customer agrees to be bound by the "XIRCA Reseller Service Agreement" and the following additional terms and conditions.

1. Object of Agreement

HS manages and maintains numerous DNS Server-farms consisting of at least three (3) DNS Clusters at independent geographical locations. Customers can create zones on servers (NameServers) within any Server-farm, which technically connect a domain to the Internet. Customer is permitted to address the Authoritative Name Servers either under their native name:

  • ns1.hexonet.net
  • ns2.hexonet net
  • ns3.hexonet.net
or under non-descriptive name

  • ns1.ispapi.net
  • ns2.ispapi.net
  • ns3.ispapi.net

In addition, Customer may utilize the NameServers as "Virtual NameServers" for domains managed under the Customer's account or is permitted to utilize the NameServers as DNS Services for domains, not managed under Customer's account at HS. Included in the DNS Services are URL and Email Forwardings. Customer is obligated to ensure that the DNS-Infrastructure of HS is not overly burdened by DNS and NameServers usage specifically utilized by Customer. Customer is prohibited from utilizing dynamic DNS Services through the Nameservers offered by HS. In addition, Customer is prohibited to use TTL values smaller than 3600 seconds per DNS Resource Record.

HS generally guarantees the mean annual availability of NameServers, DNS and Forwarding is at least 97%, excluding times of scheduled maintenance or outages due to technical or other problems outside the direct control of HS - that is in particular force majeure, acts of third parties, and all forces and circumstances that prevent HS NameServers from having access to the Internet. In the event of a dispute over annual availability, the Customer must prove that HS is grossly negligent for any downtime.

2. Illegal Activity & Abuse

Customer will not use DNS Services and NameServers in a manner that is, or potentially is, illegal, a legal risk to HS, generally objectionable in the Internet community, or degrading to the quality, goodwill, reputation, or provision of the DNS Services, or use the DNS Services for pornographic, pharmaceutical related, gambling related, or potentially illegal websites. Without limiting any other term of this Agreement, breach of this section will constitute a material breach of this Agreement.

3. Pricing, Duration and Termination

DNS-Zones for Domains that are registered and managed through HS are free of charge. DNS-Zones for Domains managed by HS but registered with a third-party registrar will be charged according to the latest prices provided within the secured Control Panel of HS. DNS fees are levied during the last week of each month regardless of when a DNS zone was created. DNS Zones are automatically renewed every month, unless they are explicitly deleted seven (7) days prior to month end and prior the occurrence of the current month's billing cycle. Additionally, Customer must initiate termination of a DNS-Zone electronically, either through the secured HS Control Panel or via the API. Customer is obligated to maintain a positive balance at all times. HS reserves the right to delete any Customer DNS-Zone due to insufficient funds on Customer's Account at HS.

4. Limitations of Liability

HS cannot be held liable for loss of revenue or profits. HS is also not liable for Damages, Third-Party Claims and other immediate damages or any losses material or immaterial by Customer.

5. Entire Agreement

Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement.

This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HEXONET, and the XIRCA Reseller Service Agreement. Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

Service Agreement SSL Certificates

By ordering an SSL Certificate through XIRCA, Customer agrees to be bound by the "XIRCA Reseller Service Agreement" and the following additional terms and conditions.

1. Object of Agreement

HS allows the Customer to order SSL Certificates from various providers (Certificate Authority - CA) by submitting an un-signed Raw-Certificate (Certificate Sign Request - CSR), along with other personal or company data provided by Customer to respective CAs.

HS is not a Certification body itself, but a technical mediator for SSL Certificates between the Customer and the respective CA, hence HS has no influence over the validation of a submitted CSR, especially if the submitted data to CA, provided by Customer, is incorrect, insufficient or false.

Depending on the Brand and SSL Certificate Type ordered, various different requirements must be fulfilled for a successful certificate validation. During the validation process, a CA may contact the Customer directly in the event they require additional information or if the CA needs to verify the submitted data.

2. Pricing, Duration and Termination

The Customer receives services through HS using a prepaid payment process, which requires the Customer to pay upfront for any service or product in its entirety. In the case of SSL Certificates, the Customer is required to pay upfront for a SSL Certificate by years the certificate is valid, which can between one (1) to five (5) years depending on the SSL Certificate Type and Brand. SSL Certificates automatically expire on their expiration date. The exact expiration date of a SSL Certificate can be viewed from within the control panel of HS. The successful validation of a CSR through CA is solely the responsibility of Customer. HS will not refund any paid fees for unsuccessful CSR validations.

3. Limitations of Liability

HS cannot be held liable for loss of revenue or profits. HS is also not liable for Damages, Third-Party Claims and other immediate damages or any losses material or immaterial by Customer.

4. Entire Agreement

Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement. This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HEXONET, and the XIRCA Reseller Service Agreement. Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

Service Agreement Rootservers

By ordering a virtual or dedicated RootServer through XIRCA, Customer agrees to be bound by the "XIRCA Reseller Service Agreement" and the following additional terms and conditions.

1. Object of Agreement

HEXONET (HS) provides RootServers (Server) with various operating systems, either directly or indirectly, through third party Partners, for Customers of HS to store and operate Websites or run Software. Customers of HS remotely access and control a Server via the Internet.

HS generally guarantees the mean annual availability of a Server is at least 97%, excluding times of scheduled maintenance or outages due to technical or other problems outside the direct control of HS - that is in particular force majeure, acts of third parties, and all forces and circumstances that prevent a Server from having access to the Internet. In the event of a dispute over annual availability, the Customer must prove that HS is grossly negligent for any downtime. Customer is solely responsible for all Software and Data that resides on a Server. The Customer receives an Administrator-Password ("root password") along with the IP-Address of the Server at the time of ordering, which gives the Customer complete control of the Server, Data on the Server, and any Software running on the Server. The Customer is permitted to resell, in part or whole, usage of the Server, provided Customer conforms to data protection laws and guidelines of Germany. The Customer pays a monthly fee to use and control a Server - different Server types exist with varying performance capacity at various monthly prices. Included in the monthly fee for a particular Server type is an assigned quantity of Transfer-Volume (also known as Traffic). Customer understands that HS has the right to charge the Customer for any Traffic the Customer uses over and above the monthly allotment assigned for any one Server type. Over charges for Traffic will be based on prices listed on HS price-list posted within HS's secured Control Panel.

The Customer is obligated to monitor and prevent over-use of a Server (the assigned capacity of a Server type that Customer pays for on a monthly basis). The Customer understands and agrees that HS has the right to prohibit the Customer from accessing a Server or turning off (shutting down) a Server that exceeds specified performance capacity. HS is required to inform the Customer in the event of such actions.

2. Pricing, Duration and Termination

The Customer receives access to a Server through HS using a prepaid payment process, which requires the Customer to pay upfront for a Server a month in advance. The exact expiration date for another month's prepayment for a Server can be viewed from within the control panel of HS.

A Customer's existing and operational Server with HS, automatically renews for another month if Customer does not specifically terminate Server at least seven (7) days prior to the expiration date of said Server. Customer understands and agrees that renewing a Server means that HS will deduct the next month's payment for use of a Server from the Customer's account. In the event the Customer's account has insufficient funds to renew a Server, 24 hours before its expiration, Customer understands that HS reserves the right to prohibit access, shutoff, or even permanently delete (erasing all data, software and settings) the Server at HS's discretion.

Termination of a Server must be initiated and submitted by Customer either through the Control Panel. Termination of a Server after a payment for the following month's usage fee has been withdrawn and before the current month's expiration date will automatically be refunded back to the Customer's account. Customer is obligated to maintain a positive balance on their Customer account with HS at all times. Failure to maintain a positive balance may result in immediate termination of all services and Servers.

3. Content

Customer guarantees that use of a Server does not infringe the rights or morals of third parties (brands, names, authors, data protection law, etc.), break legal prohibitions, or aid/support in the violation of said rights, morals, and laws. Additionally, Customer must ensure that any running Software or configuration of Server does not affect the overall RootServer Service at HS.

The Customer also agrees not to send or have sent any emails containing any type of advertisement without the explicit agreement of the respective recipient. In particular, this applies if the respective emails all have the same content and are sent out in a mass mailing (spamming). Should the Customer violate this obligation, HS has the right to block all services immediately and to hold the Customer liable for all resulting damages. Violating any of the terms and conditions of this Agreement, HS reserves the right to prohibit access, shutoff, or even permanently delete (erasing all data, software and settings) a Server or data on a Server at HS's sole discretion without warning or notice. Additionally, HS reserves the right to legally make the Customer liable for any damages held against HS due to any breach of this Agreement by Customer.

4. Limitations of Liability

HS cannot be held liable for loss of revenue or profits. HS is also not liable for Damages, Third-Party Claims and other immediate damages or any losses material or immaterial by Customer. In addition, the Customer understands and agrees that HS is not responsible or liable for the data connection between Customer and the Server nor is HS liable for Server unavailability or loss of functionality due to third parties attempting to disrupt or disable (Hacker-Attack) the respective Server.

5. Entire Agreement

Modifications, amendments or termination of this Agreement must be made in writing. If any one term or condition of this Agreement is held to be invalid, such invalidity shall not effect the remaining terms or conditions. Any provision deemed unenforceable, due to a legal mistake or invalidity, can be replaced with a provision that is enforceable and is as close as possible to the original intent by HS. HS reserves the exclusive right and authority to replace any provision of this Agreement.

This Agreement is governed solely under the Laws of the Federal Republic of Germany, as well as, the General Terms and Conditions of HEXONET, and the XIRCA Reseller Service Agreement. Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of the General Terms and Conditions is applicable to this Agreement.

TERMS & CONDITIONS

  1. General
    1. For all business relations between the company HEXONET GmbH (in the following called HS) and the customer, the following General Terms and Conditions and the information on the web pages of HEXONET apply.
    2. HS does not accept any alternative general terms and conditions of the customer.
    3. HS is entitled to change these General Terms and Conditions at any time. The changes become effective for the customer, if the customer does not object to them within 14 days of their announcement.
    4. In the case of an objection, HS is entitled to terminate the contract on 1 month period of notice.
    5. These General Terms and Conditions and the future changes to them can be accessed on the internet on the web pages of HS at all times.
    6. The customer is obligated to take notice of the General Terms and Conditions of HS as well as all respective appendices relevant to the customer and to save them.
  2. Governing Law
    1. 1. This agreement shall be governed only by
      1. subsidiary agreements in writing,
      2. these General Terms and Conditions
      3. the Laws of the Federal Republic of Germany exclusively in the above listed order.
    2. 2. A right to revoke or a return privilege in accordance with the Act on Distance Selling [Fernabsatzgesetz] does not apply if the services of HS are rendered as requested by the customer. In particular, this applies to the registration of the domain name given by the customer.
  3. Offer and Conclusion of Contract
    1. A contract is only closed through the written or electronic confirmation of the application by HS or if the purchase is fulfilled.
    2. Should services of HS only be partially deliverable, the customer will also accept part delivery.
    3. All prices listed on the web site of HS are binding and subject to change without notice.
    4. The customer undertakes to check the order confirmation of HS and to notify HS in the event of any mistakes and/or discrepancies.
  4. Availability of Online-Systems
    1. HS generally guarantees the availability of their online systems on 7 days a week, 52 weeks a year. The guaranteed mean annual availability is 97%. However, excluded are all times when maintenance work is carried out and when single or all use rs due to technical or other problems which are outside of the influence of HS - that is in particular force majeure, the acts of third parties, and so on - are not accessible on the internet. In the event of damage, the aggrieved party has to pr ove that HS is responsible for the downtimes.
  5. Limitation of Liability
    1. For all services of HS liability will be limited to intent and gross negligence.
    2. In the case of paid services, liability in the event of gross negligence is limited to the amount of the fee paid by the customer for the respective service or service period.
    3. HS cannot be held liable for mistakes, delays of services and server downtimes outside of their influence, in particular outside of their network and databases. In the event of such disruptions, HS is entitled to postpone the delivery or service by the time of the duration of the disruption plus an appropriate start-up time. HS further has the right to limit the access to the services if the security of the network operation, the upkeep of the network integrity, in particular the avoidance of grave disturbances of the network, the software or the stored data should require such actions.
    4. By accessing the registration system and using the services of HS the customer agrees to indemnify HS, agents, partners, ICANN, the central registry as well as all persons involved in the registration process with respect to all claims, demands, liabilities and/or costs resulting from an illegal use of a domain name registered by the customer. This also applies to all claims resulting from force majeure, intervention by government or administrative authorities, strike, unrest, war, natural disasters, scarcity of general telecommunication services or similar influences that are outside of the direct influence of HS.
  6. Duration of Contract and Termination
    1. Should HS within service contracts provide any services free of charge, such services can be terminated at all times without giving any reasons and notice. However, in the event of such cases HS will terminate the services on 1 month notice.
    2. In the case of registration or transfer of domains, the duration of contracts and their renewals depending on the respective domain can be between 1 to 10 years.
    3. For registered domains the contract will automatically be renewed for further 12-month periods unless the contract is terminated on at least 3 months notice before the expiration of the then current term.
    4. For the use of web and mail space a contract with limited duration will be renewed by further 6-month periods unless it is terminated on at least 1 month notice before the expiration of the then current term. Contracts with unlimited duration as well as other contracts for the transfer of use and enjoyment, as for example file services, database storage, and so on can be terminated on 1 month notice by the end of each month. This will not effect a termination of contract for cause. A termination for cause for all services of HS in particular presents itself if the customer:
      1. in the case of a contract with minimum duration is more than 14 days delayed in paying the amount of 1 monthly fee,
      2. in the case of all contracts with unlimited duration is more than 20 calendar days delayed in paying the fees,
      3. culpably violates the obligations of the contract or the Terms and Conditions,
      4. has clearly committed any illegal acts,
      5. despite warning within an appropriate period of time has not modified his web pages in such a way that they comply with the legal and contractual provisions,
      6. Culpably violates the registration conditions or regulations.

    5. In such cases all rights of the customer will be forfeited.
    6. The customer will be informed on his obligation to pay no later than 30 days before the end of the term of contract. Should the fee for renewal not be paid in time for the renewal or should the customer not show the necessary balance at HS, that can be set against the fee, HS is entitled to discontinue its services and to cancel domains.
    7. In the case of cancellation of domains, HS is entitled to the continuation of the complete payment for the registration for the duration of the agreed accounting period. There is no prorated refund.
    8. Should HS in accordance with the terms and conditions of the respective registrar not be able to maintain the sub-level domain of the customer, HS has the right to terminate the contract with the customer on these services for cause on a 14 day notice by the end of the month.
  7. Data Privacy Protection
    1. According to Section 33 of the German Law on Data Privacy Protection [BDSG], HS informs his customers that within the registration processes personal data is stored and passed on to third parties involved in the registration process. This includes the storage of personal data in so-called -WHOIS- databases.
    2. The customer guarantees that all data submitted by him is correct and complete. By changing the data via the web interface the customer further agrees that these modifications are correct and true. The customer acknowledges that providing incorrect data will lead to the immediate forfeiture of all rights resulting from the service. In such cases, there will be no refunds.
    3. HS is authorized to process and use customer data to consult customers and to improve its service offer to tailor it better to the needs of the customers.
    4. The customer at all times is entitled to be informed free of charge on his personal data stored.
    5. The customer agrees to HS sending information and marketing emails to the customer-s email address.
    6. If the customer acts as a reseller in the registration of domains and intends to use any privacy service or become a licensee of a proxy registration service, the customer must display a notice to its own customers at the time of a registration or submission of data, that usage of a privacy or proxy service means that the registration data is not being escrowed.
  8. Pricing
    1. All prices for the complete range of services of HS are published on its website. These prices can be changed at any time.
    2. For all services, only the rates and taxes published on the website on the day of the actual conclusion or renewal of contract are applicable.
  9. Payment
    1. Payment by the customer can be made by debit, PayPal or by wire transfer. In the case of PayPal or bank transfer the customer is obligated to pay in advance.
    2. Services by HS will only be rendered upon the customer submitting the credit card number and expiration date of the credit card or upon the crediting of the required amount to the account of HS through direct debit, submitted cheque or advance bank transfer. All transaction costs are to be borne by the customer.
    3. The customer will receive a monthly invoice for all services rendered by HS.
    4. The customer agrees to HS providing all invoices in PDF-format in a protected area.
    5. The customer agrees that he will forfeit all rights to the services of HS in the event of a claim back by his bank or credit card company, in the event of credit card fraud or reversal as well as in the case of credits in the event of nonpayment upon the expiration of an appropriate period of time set by HS. HS in such cases has the right to include reserved domains in their own portfolio or to release them to third parties.
    6. Should the customer wish to receive an invoice by regular mail, HS is entitled to charge EUR 3.00 per mailing. In the case of debit entries, HS additionally charges a processing fee of EUR 8.00 per debit plus the transaction costs of HS which are currently EUR 9.00 per debit entry.
    7. In the event of premature termination of a contract service the payments made for this service are not refundable and there is no prorated refund.
    8. Advance payments for domains that could not be registered will be credited to the customer-s account and will be refunded immediately upon the customer-s request. Any transaction costs for the refund will be borne by the customer.
    9. Resellers need to show sufficient funds in their account at HS to cover the payments owed by contract for the commissioned registration or renewal.
    10. Should a customer not show the necessary balance, HS is entitled to withhold the service without further notice or to include registered domains in their own portfolio or to release them. However, also in this case, the payment agreed by contract still remains owed.
    11. The customer may only set his own claims against the claims of HS if there are no objections to these claims or if these claims have been deemed legally enforceable.
  10. Consideration
    1. To the extent of using web hosting services of HS customers are obligated to indicate the contents published by them as their own by providing their name and address. The customer agrees to identify the contents featured on his internet site as his own by providing his complete name and address. The customer is hereby informed that there may be further obligation of identification, e.g. if the internet pages offer tele services or media services.
    2. The customer may only feature contents that do not offend any legal prohibitions, the rights of third parties, or bonos mores. In particular, the customer agrees not to offer any pornographic contents. The customer may not enter his internet presentation into search engines using keywords that would violate any legal prohibitions, the rights of third parties or bonos mores. In each case of contravention of the above mentioned provisions the customer undertakes to compensate HS for all damages resulting from the violation of the above mentioned provisions.
    3. The customer agrees to indemnify HS with respect to all claims resulting from the violation of the above mentioned obligations.
    4. HS has no obligation to check the contents of the customer-s websites or internet presentations on possible violations of law. Upon detecting legal violations or undue contents HS is entitled to block such internet presentations. HS will immediately notify the customer of such measures.
    5. Should third parties put forth claims against HS resulting from actual or alleged infringements of their rights, HS has the right to undertake everything to stop the delivery of such undue content.
    6. In the event of an hacker attack, HS cannot be held liable in any way.
    7. The customer is hereby informed that in the case of the use of SMS there is no possibility for checking cases of abuse. The customer undertakes not to use SMS for illegal purposes. The customer indemnifies HS with respect to all claims of third parties resulting from the illegal use of SMS. In the event of illegal use of SMS, HS has the right to block this service.
  11. Responsibilities of the Customer
    1. The customer undertakes to keep passwords given to him by HS for the access to the services strictly confidential and to notify HS immediately should he learn about any unauthorized access to the passwords by third parties. Should third parties receive access to services offered by HS through the abuse of these passwords, due to fault of the customer, the customer is liable to HS for all user fees and damages.
    2. The customer agrees not to send or to have sent any emails containing any type of advertisement without the explicit agreement of the respective recipient. In particular, this applies if the respective emails all have the same content and are sent out in a mass mailing (so-called spamming). Should the customer violate this obligation, HS has the right to block all services immediately and to hold the customer liable for all resulting damages.
    3. The customer undertakes to check the incoming messages in his email accounts at regular intervals of no longer than 2 weeks. HS is entitled to return incoming personal messages to the sender, should the capacity of the mail box prescribed in the respective package be exceeded.
    4. The customer is obligated to design his internet presentation in such a way that he can avoid exceeding the agreed amount of traffic, e.g. by not using CGI-scripts, which require higher computing power or need more than the average memory. HS has the right to close web pages to customer or third-party traffic if they do not comply with the above mentioned requirements. HS will immediately notify the customer of such measures.
    5. Volume for additional data transfer depending on the technical capacity of the computing centre and under consideration of the obligation to offer services to all customers will be made available by HS upon agreement for an additional fee based on the price list currently applicable.
    6. The customer undertakes not to run any chats on any internet presentations at HS.
    7. The customer is forbidden from displaying the ICANN or ICANN-Accredited Registrar logo, or from otherwise representing itself as accredited by ICANN unless it has written permission from ICANN to do so. Breach of this this term is grounds for immediate termination of this Agreement.
    8. The customer must either identify the ICANN accredited registrar ("Sponsoring Registrar") upon inquiry from any clients or he must offer his clients the possibility to do a WHOIS query for gTLDs. In case of gTLD Registrations through HEXONET, the sponsoring registrar is 1API GmbH.
    9. The customer will require all their clients and end users to agree to the customer’s paper or electronic agreement or terms of use (customer's TOU) as a precondition to the purchase, receipt, or use of customer’s services. Customer is permitted to obligate end users to agree to additional terms and conditions, provided that such additional terms and conditions do not conflict with this Agreement or any policy implemented by ICANN or any registry operator. The customer's TOU must include in all material substance the then current terms and conditions as contained in this Agreement. The customer's TOU must include in material substance the following terms:
      1. The customer must either identify the ICANN accredited Registrar ("Sponsoring Registrar") upon inquiry from any clients or he must offer his clients the possibility to do a WHOIS query for gTLDs.
      2. End User will indemnify, defend, and hold harmless customer, and its Affiliates, third party vendors, service providers, licensors, and contractors (and each of their Affiliates, directors, officers, managers, employees, vendors, service providers, contractors, and agents) from and against any claim, action, loss, liability, damage, penalty, cost or expense (including reasonable legal fees for attorneys, witnesses, and defense) that any of them may suffer or incur as a direct or indirect result of End User’s relationship with customer or the provision or use of any service offered by customer.
      3. End User understands, acknowledges, and agrees that the customer's TOU may be amended from time to time and without prior notice and that all such amendments will be binding on End User from the date of thereof.
      4. End User understands, acknowledges, and agrees that the person recorded as the administrative contact for the domain name will have full access to the username and password therewith and, as a result, will have the ability to control the administration and ownership of the domain name, including the ability to execute registrant transfers, registrar transfers, and Whois changes. If End User loses or forgets the username and password, customer’s only obligation will be to provide a new username and password to the administrative contact recorded in the Whois at the time. End User further agrees to follow customer’s then current procedures for changing the administrative contact of record, which may entail submission and notarization of certain forms, documents, and photo identification (as requested by customer).
      5. If End User is acting as a reseller and uses a private or proxy registration service in the submission of any data, that the End User to must either (1) conspicuous display notice to its own customers at the time an of a registration or submission of data, that usage of a privacy or proxy service means that the registration data is not being escrowed or (2) if End User is escrowing registration data through an authorized escrow service company, that the End User's escrow agreement contain the provision that upon breach of customer's TOU by End User that all data be released to customer, and that such breach is harmful to consumers or the public interest.
      6. If End User is reselling gTLD Domain Names, the End User is required to provide and display to all of its registrant customers a link to ICANN's "Registrant Rights and Responsibilities" document. The URL to this document is at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm. Failure of End User to inform display and provide this URL to End User's registrants is a breach of the End User's obligations.
    10. The customer must also provide provisions and notices required by the ICANN Registrar Accreditation Agreement and any ICANN Consensus Policies, as well as, a URL or link to ICANN's webpage on the customer's TOU.
    11. The Customer, if reselling gTLD Domain Names, is required to provide and display to all of its registrant customers a link to ICANN's "Registrant Rights and Responsibilities" document. The URL to this document is at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm. Failure to display and provide this URL to Customer's registrants is a breach of the Customer's obligations.
  12. Sponsoring Registrar
    The sponsoring registrar for HEXONET is 1API GmbH – www.1api.net.
  13. Entire Agreement
    1. Modifications, amendments and terminations must be made in writing.
    2. For commercial customers, legal persons or persons without place of jurisdiction in Germany, in the case of dispute resulting from these General Terms and Conditions with HS Homburg is the exclusive place of performance and jurisdiction.
    3. These General Terms and Conditions shall be governed by the Laws of the Federal Republic of Germany excluding the provisions of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) on the sale of movable goods.
    4. If any provisions of these General Terms and Conditions are held to be invalid, such invalidity will not effect the remaining provisions. All provisions deemed unenforceable due to a legal mistake or invalidity to the extent possible shall be replaced by provisions that are enforceable and correspond as much as possible to the original intent. As far as permissible, the replacement of the provisions to the above mentioned extent will be made by HS.
    5. Concurrent German and English versions of the General Terms and Conditions of HS are available. The German version of these General Terms and Conditions is applicable.
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