SKYWAY Datacenter GmbH – in the following SKYWAY – is a service provider for hosting services, colocation, server housing and data storage.
All services of SKYWAY are only performed on the basis of these terms and conditions and the information provided on the website at the time of the order or renewal of a service.
Customer's terms and conditions are only accepted if SKYWAY has provided their consent in written form.
SKYWAY can modify their terms and conditions, as well as their price list at any point in time. SKYWAY will notify the customer by mail or email, unless such notification requires unreasonable efforts. The customer can object to these modifications within 14 days starting from the notification. Should the customer object, SKYWAY may terminate the agreement within 14 days or, at their choice, at the next possible termination date. If the customer does not object, then the new terms and conditions are accepted by the customer.
The customer is obliged to read and save these terms and conditions, as well as the respective appendixes which are relevant to the customer. SKYWAY will keep a current version of these terms and conditions available on the internet.
The customer agrees to SKYWAY sending important notifications by email. The address entered in the customer account must be kept up to date and checked at a regular interval. SKYWAY is not responsible for customers not taking notice of messages sent to the email address provided by the customer.
By placing an order through SKYWAY and/or by electronic initiation of actions the customer declares that he has the power to place orders directly by himself or as the power of attorney of his organization and that he agrees to the service agreement in all parts.
In case of orders for or in the name of third parties, the customer remains the only contract partner of SKYWAY. Our terms and conditions, contract terms and general service rules shall also apply to the third party; the customer ensures that the third party abides by the required code of conduct and duties.
2. Contract Offer and Conclusion of Contract, Scope of Supply
The SKYWAY web pages constitute an invitation for customer contract applications that is subject to change. A contract can either be closed through written or electronic confirmation of the application by SKYWAY or if the ordered service is implemented. Mere use of the website or confirmations of receipt of application shall not be considered to constitute a contractual relationship with SKYWAY.
If the order can be delivered in parts the customer will also accept a part-delivery.
The object of the agreement and scope and description of services shall be defined by the actual contracts.
Customer is obliged to check the order confirmation from SKYWAY and must contact SKYWAY immediately should there be any mistakes.
3. Liability and Force Majeure
As a condition of the customer’s access and use of the services the customer agrees to defend, indemnify, save and hold harmless SKYWAY, its agents, partners, as well as all persons involved in the service delivery process in respect to all claims, demands, liabilities, costs and/or expenses resulting from illegal use of the service or the content provided through the service. In the event of a claim, customer has the right to prove SKYWAY, that claims in the context of the exemption have not occurred in the demanded extent or not at all, and/or the customer is not responsible.
SKYWAY, its agents, partners, nor any person involved in the performance of the service will be liable to the customer or any third party for any direct or indirect loss of profits, earnings or business opportunities, damages, expense, or costs resulting directly or indirectly from any failure to perform any obligation or provide service hereunder due to Force Majeure, or governmental acts or directives, strikes, riot or civil commotion, war, any natural disaster, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar force or condition beyond SKYWAY‘s reasonable control.
SKYWAY cannot be held liable for delays of services and server down times resulting from higher force, fault of third parties or due to events outside the realm of influence of SKYWAY, in spite of any agreed upon deadlines and dates. You hereby permit SKYWAY to withhold the service and/or performance for the duration of the disruption plus an appropriate starting time. Furthermore, SKYWAY can limit the service if the stability and security of the operation, the maintenance of the net integrity, in particular the avoidance of serious disturbances of the network, the software or stored data requires such action.
SKYWAY assumes no responsibility for content saved on their servers. The customer is responsible for saving and keeping his own backup copies of his data, and reinstalling them in case of loss of data.
For all services offered by SKYWAY liability will be limited to cases of intent and gross negligence.
In case of paid services liability is limited to cases of negligence and gross negligence to the amount of the payment paid in each case by the customer for the respective service and/or service period. In every other case, liability is limited by the maximum amount allowable by law as well and the amount of damage that are typically foreseeable at the time of the agreement.
All servers of SKYWAY are normally active 24x7. This does not include interruptions due to previously announced maintenance. SKYWAY does not guarantee an uninterrupted service. SKYWAY shall not be held liable for loss of data, interrupted data transmission and any other problems which may occur due to technical breakdowns, disturbances in the technical infrastructure of the internet, DDOS attacks, hacking, strikes and other technical problems outside the realm of responsibility of SKYWAY and its suppliers. The customer shall report any interruptions of service to SKYWAY in order to allow SKYWAY to start immediate reinstatement of services.
The customer is liable for all damages resulting form violations of the service policies or these terms of conditions, and shall indemnify SKYWAY from all claims or other impairments resulting therein.
Access to servers or web spaces can be temporarily disabled if the contents thereof violate current law in a serious manner and the customer does not react to the request to remove the content.
The customer agrees to keep all passwords and access data received from SKYWAY for access to the service secret and to inform SKYWAY once he receives any information about unauthorized parties gaining access to these passwords. The customer acknowledges that he is responsible for any orders or requests initiated with his user-identification and that he bears the risk of unauthorized use of his access data. Should unauthorized third parties use or order any services while using his account, the customer is responsible for all fees and damages. SKYWAY may lock access to an account if there is sufficient reason to assume it is used by unauthorized parties. SKYWAY will inform the customer of any such measure taken.
In case of allowed use by third parties or resale of products and services of SKYWAY to third parties, the customer is liable for any claims resulting form violations of the contract terms by the third party.
4. Duration of Contract and Termination
If the parties do not agree otherwise, and no other term is specified in the service description, a contract with a limited duration will automatically be renewed for twelve (12) months if one of the parties does not confirm the termination at least one (1) month before the end of the current term of service. The termination notice must be issued in writing to the other party.
Both parties have the right to terminate the contract for an important reason. An important reason on behalf of SKYWAY can be if the customer is more than 14 calendar-days late in submitting the monthly fee for a contract which has a minimum duration or for a contract where a certain duration time period has been agreed upon, is more than 20 calendar-days late in submitting the payment for a contract which has an undefined length, violates his obligations according to these terms and conditions or the service contract in a fundamental way, if obvious violations of the law are present in the content hosted on his servers or web space, as well as if the service is used for other obviously illegal purposes, despite warning within appropriate period does not modify the content in such a way that they meet the requirements regulated in the terms and conditions or acts contrary to the terms and conditions of the service and the requirements. In these cases the customer loses all rights to the service.
The customer will be informed by email no later than (30) days before the end of the service term asking payment for renewal. In the case no payment is received at least three (3) days prior to the end of the service term, the customer will lose all rights to the service. In case the contract is not terminated in time and the customer has specified credit card or bank debit as his payment method, and entered current and valid payment details the due amount will automatically be charged ten (10) days prior to the expiration of the service and the service contract will be renewed accordingly.
In case of termination of colocation contracts, the customer agrees to a storage fee of 50.00 € for not collected hardware for each month that has started. This fee will also become due in case of non-payment of payable charges for temporarily stored hardware.
Cancellations notices are only accepted in written form, for contract conclusions beginning from 2016-10-01 in text form, which shall include faxed messages.
The right to repeal or return for long distance agreements is excluded for service agreements where performance is immediately initiated at the customer's request as well as for services specifically tailored to the customer's needs.
5. Data and Protection of Data
The customer is committed to supply SKYWAY with the following information and data. The customer assures that all submitted data and information to SKYWAY is correct and complete. By changing the data in the customer-online-interface, the customer furthermore assures that these modifications are correct, complete and truthful. The data has to be kept current. Incomplete data has to be completed. The customer acknowledges that the indication of incorrect data can lead to the immediate deactivation of the respective service without refund. This does also include cases where a customer does not comply with SKYWAY's request to correct the data given within the period of time given. This concerns in particular: his full name, his postal address, his email address, his voice telephone number, his fax number – if available – in case of an organization, association, or corporation – additional information on name and address of an authorized person for contact purposes.
According to article 33 of the German Law on the Protection of Personal Data SKYWAY informs his customers that in the process of the execution of the agreement personal data are stored and processed and that personal data may be transferred to third parties involved in the fulfillment process.
SKYWAY is authorized to use the data for improvement of its services and to even better adapt its services to the needs of the customers.
SKYWAY may also permanently store all data required for billing purposes.
The customer has the right to be informed free of charge on the storage of his personal data.
The customer agrees to receive informational and marketing emails directly from SKYWAY.
The prices for services of SKYWAY are published without engagement on its website; these prices can be changed at any point in time.
For renewal of services the prices on the day of the renewal transaction apply.
Payment can be made by credit card (VISA, Mastercard, AMEX), Eurocard, wire transfer, by Paypal or by check drawn to a German bank.
The execution of services is possible only after receipt of payment. Should the customer chose to pay via check or wire transfer, then the service order will get processed after the funds have been received on the bank account of SKYWAY. All transaction costs are to be covered by the customer. The customer has no right to fulfillment until payment is received.
The customer agrees that he will lose all rights to use of the service in case of a charge back by his bank or credit card company, credit card fraud or any other reversed payment.
Should the customer wish to receive an invoice by regular mail then SKYWAY has the right to charge three (3) Euro for each mail delivery.
In case of premature termination of the service by the customer, the customer shall have no claim for a substitute service or a refund.
The payments for services is also not refundable in case of disruptions in the service due to Force Majeure or other causes outside the realm of responsibilities of SKYWAY.
Prepayments will be credited onto the customer account and can be refunded at any time. The customer will cover all costs of this refund.
If a bank debit is denied by customer or by the bank due to insufficient funds, the customer is liable for the bank costs, currently 3 Euro, plus an additional processing fee of 8 Euro per failed bank debit.
The customer can offset his own claims against claims of SKYWAY only if these claims have been previously accepted in writing by SKYWAY.
In case of default on payments, SKYWAY may charge an annual interest of 9% above the current basis interest rate according to § 247 BGB, or if the customer is a consumer, an annual interest rate of 5% above the current basis interest rate.
8. Obligations of the Customer for the Use of Hosting Services
SKYWAY customers are responsible to provide full information of name and address in case of content made available online. The customer is furthermore committed to identify the content of his website as his own content with his full name and address. Further legal obligations of identification may exist if the content relates to telecommunication services or media services.
The customer may by his use of the service and the content of website made available by use of the service not offend legal prohibitions, the public morals and the rights of third parties (brands, name rights, authors rights or data protection laws), or support such violations actively by means of the service. In particular the customer is committed not to use the service to make available pornographic or erotic content and or for services directed at the realization of profits related to pornographic or erotic contents (e.g. nude pictures, peep shows, etc.). Similarly, making available or distributing viruses, content that glorifies violence, racist or right wing extremist content, incitements towards criminal activity as well as content directed at debasing the human dignity of others (hate pages) is prohibited. The customer is not allowed to use key-words which could violate legal prohibitions, the public morals and rights of third parties. The primary use of the service for download servers or web mail services is not allowed. The customer is committed not to maintain any CHAT-Rooms, or Chat-Servers under the Internet-presences purchased through SKYWAY. The customer will be held liable for all damages resulting from violations of these obligations, and agrees that access to any offending content may be blocked or the content deleted. SKYWAY shall inform customer of any such action.
The customer agrees that he is solely responsible for the content published through his use of the service and agrees to defend, indemnify, save and hold SKYWAY harmless in respect to all claims, demands, liabilities, costs and/or expenses resulting from a violation of the obligations above, including all direct and indirect damages as well as economic losses. This clause shall survive the termination of the agreement.
SKYWAY is not committed to check the the use of the service by the customer or internet-presences for violations. The customers contents are considered foreign contents for SKYWAY as per § 8 Telemediengesetz. After recognizing or being advised of legal offenses or inadmissible contents SKYWAY maintains the right to partially or totally block third party access to the content. SKYWAY will immediately inform the customer of such actions and third party claims. If possible, the blocking shall be limited to the offending content and shall be lifted once the customer can plausibly prove the legitimacy of the content or removes the offending content.
Additional data traffic volume can be supplied by SKYWAY within the limits of the capacity of the data center and the duties of service towards other customers for an additional fee, the amount of which can be seen in the current price list by request. Traffic flat rates are handled under the fair-use principle.
9. Final Clauses
Modifications or changes of terms or conditions or the contract, as well as cancellations will only be accepted in writing, for contract conclusions beginning from 2016-10-01 in text form, oral agreements shall not be considered valid. This also applies to terms and conditions of customers unless KS expressly agrees to accept such terms in writing.
For commercial customers and legal entities in Germany, as well as for all customers without permanent residence in Germany, St. Ingbert/ Germany will be the exclusive place of jurisdiction, as well as the place of fulfillment.
For the contract between SKYWAY and its customers the German law is the only effective law. The application of UN law on the purchase of movable objects is excluded.
If any provision of these terms and conditions shall be unenforceable and/or invalid, such unenforceability and/or invalidity shall not render these terms and conditions unenforceable or invalid as a whole. Any provision determined to be unenforceable or invalid shall be replaced by provisions which are valid and enforceable and closest to the original objectives and intents of the original provisions in an economic and legal sense that would have been agreed upon by the parties, had they known of the invalidity at the time of the agreement.
Both, the English and German version of these "terms and conditions" are valid. In case of doubt, however, the German terms and conditions will be decisive.