General Terms & Conditions
General Terms & Conditions
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY GMX YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THESE TERMS & CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE THAT YOU SUBMIT TO THE LAW OF THE FEDERAL REPUBLIC OF GERMANY AND TO THE EXCLUSIVE JURISDICTION OF THE GERMAN COURTS AT THE REGISTERED SEAT OF GMX. Please carefully read these terms and conditions as they describe your legal rights and obligations. This agreement shall become come effective as of the date of (1) your electronic signature on or acceptance of this agreement, (2) the activation of your account or (3) your receipt of an email from GMX confirming your order, whichever happens first.
For the purposes of this Agreement:
1.1. "Content" shall mean the downloadable files which are interpreted by a client email or other application for display with or without plug-ins.
1.2. "GMX,” "us," "we," "our" and grammatical variants thereof shall collectively refer to 1&1 Mail & Media GmbH, a corporation organized and existing under German law located at Brauerstr. 48, 76135 Karlsruhe, Germany and its assigns and successors in interest.
1.3. "Fee" shall mean monies and other consideration you are obligated to pay to GMX for the right to use the GMX Services and Bandwidth subject to the terms and conditions of this Agreement and of the particular GMX Services for which you have registered, as outlined on the then-current schedule of fees. Fees are subject to change at any time without prior notice.
1.4. "GMX Equipment" shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by GMX and/or GMX's affiliates, agents, or assigns which function to provide the GMX Services.
1.5. "GMX Services" shall mean the products and services provided by GMX at any given time, including but not limited to email, file storage, organizer, and any associated support services, which GMX Services may be changed, amended, cancelled and/or otherwise altered at any time in GMX's sole discretion.
1.6. "GMX Software" shall mean any software provided by GMX at any given time, whether downloaded to your computer or utilized online as part of the GMX Services. The GMX Software includes the program and any and all copies or portions thereof, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the software, if any.
1.7. "Laws" shall mean the laws, statutes, and regulations then in effect of the European Union as well as the laws of your country of residence or the country in which you use or access the GMX Services and the laws of any provinces, states or dependencies thereof.
1.8. "Parties" shall collectively refer to GMX and you.
1.9. "Payment Account" shall refer to the credit card or such other account as is provided by you and accepted by GMX upon registration to pay for your Services. GMX may add, delete, or modify the methods by which customers can pay for the GMX Services at any time without prior notice, in its sole discretion, at which point you must either update your account with a valid Payment Account or your account will be terminated. Payments processed by third party processors are subject to those processors’s terms and conditions of service, and GMX makes no representations or warranties with respect to any third party payment services.
1.10. "Premium Services" shall refer to GMX accounts for which payment of a Fee is required.
1.11. "Suspend" or "Suspension" shall include the disabling of your Account and/or the cessation of transmission of data via your Services.
1.12. "Term" shall be, for Premium Services only, one year or as otherwise stated in the specifications for your Services or for any renewal Term thereof.
1.13. "You", "your" and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.14. "Your Data" shall mean any data, including but not limited to documents, emails, images, web pages, or other Content, related to your use of the GMX Services and stored on or transmitted by the GMX Equipment.
1.15. "Your Services" shall mean the specific GMX Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract.
2. TERM AND TERMINATION
2.1. You or GMX may terminate this Agreement at any time for any reason, with or without cause. You may terminate by (a) notifying GMX via email or by certified mail to the address found here which notification shall be effective upon receipt by GMX, or (b) closing your accounts for all of your Services via GMX’s user interface, where GMX has made this option available to you.
2.2. Notwithstanding the provisions of Section 2.1. to the contrary, the initial Term for Premium Services shall be one year or as otherwise stated in the specifications for your Services, at the end of which term this Agreement shall renew automatically for the same period unless terminated prior to renewal pursuant to this Agreement. GMX may, but is not obligated to, allow you change the duration of the Term or the specific services for Premium Services at the beginning of any renewal period, and you agree that GMX may debit your Payment Account for any resulting Fees.
2.3. Your termination of a Premium Services account shall be effective as of the end of the then-current Term and shall result in the account being downgraded to a free GMX account. All other terminations, including a termination by GMX with or without cause, shall be effective immediately.
2.4. If your account is not a Premium Services account, you are required to log in to your account periodically, but no less that once every six months, in order to maintain the account. You agree that in the event GMX determines, in its sole reasonable discretion, that you have not logged in to your account for more than six months, GMX may, without any liability to you, however subject to the provision in Section 7, and in addition to any other remedies, terminate or suspend your account and erase any materials associated therewith from GMX’s Equipment without notice to you. You further agree that in the event that GMX believes, in its sole reasonable discretion, that you have breached any provision(s) of this Agreement, including but not limited to Sections 3 or 8, GMX may, without any liability to you, however subject to the provision in Section 7, and in addition to any other remedies, terminate or suspend any and all accounts registered by you or your access to your Services and your Data without prior notice to you. You further agree that in the event that GMX believes, in its sole reasonable discretion, that you have posted materials that breach any provision(s) of Section 8 of this Agreement, or any of its subparts, GMX may, without any liability to you, however subject to the provision in Section 7, and in addition to any other remedies, erase such materials from the GMX Equipment without prior notice to you. If your account is suspended by GMX for any reason whatsoever, your e-mail address may or may not be retained by GMX in its sole discretion. After any such retention period, your e-mail address may be released and made available to another customer. If your account is suspended for non-payment of Fees, GMX may but is not obligated to restore your Premium Services account for the remainder of the Term upon written notice to GMX and payment in full of all Fees due and owing on the account, provided such notice is provided to GMX within one year after the first day of the then-current Term (the "Notice Period"). Premium Services accounts not restored during the Notice Period will be terminated immediately upon the expiration of same.
2.5. Upon termination of this Agreement, you will no longer have access to your account. All data, including but not limited to e-mails or other files associated with your account and Services, may be irrevocably deleted at any time after termination and all transmission of data will cease. GMX may, in its sole reasonable discretion, make your data available to you to the extent it has not been deleted. Without prejudice to the provision in Section 7, on which we herewith refer to, GMX accepts no liability for such deleted data.
3.1. For Premium Services, all Fees must be paid in advance of the provision of services for the entire Term. Fees must be paid in EURO via the Payment Account, and are nonrefundable (except as expressly permitted otherwise by this Agreement), including any Fees paid in advance for the term during which you terminate. You agree that GMX may automatically debit the Fee and any additional fees from the Payment Account unless specifically provided otherwise. You also agree that GMX may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to your Services, including but not limited to fees for your use of services in excess of those included within your Services. If payment in full is not received by GMX from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for your Services without demand by GMX. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
3.2. In addition, certain GMX Services may be subject to set-up, service, or other fees, and by registering for such GMX Services you authorize GMX to debit your Payment Account for any and all such fees.
3.3. Your credit or debit card issuer, directly or through third-party service providers, may provide GMX with updated credit card numbers, expiration dates, or other information which may be used to renew services or make payments under this Agreement. Should GMX choose, in its sole discretion, to participate in such auto-update programs, you agree that GMX may share your Payment Account information with such third-party providers and may update your Payment Account with information provided through such services. You authorize any and all charges to your Payment Account using such updated information, whether or not you or GMX have prior notice of same. GMX cannot guarantee that your Payment Account will be updated, and you acknowledge and agree that it is your responsibility to keep your payment information current and up-to-date at all times and that you shall be liable to GMX for your culpable failure to do so, including for any charges that GMX may incur as a result of your failure to keep your payment information current. GMX shall have no liability for declined payments or incomplete or out-of-date Payment Account information.
3.4. GMX may offer promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for your Services. Any such promotions or modifications shall not affect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
3.5. Certain special offers for Premium Services may include a free introductory period. Unless you terminate your account prior the the expiration of such introductory period you agree that you will be liable for and GMX may automatically debit your Payment Account for the Fees for the Premium Services associated with that account. GMX reserves the right at any time to withhold, modify, or discontinue, temporarily or permanently, such introductory or promotional offers, with or without notice.
3.6. Changes to your Services, including downgrades by you or termination of your Premium Services, may result in loss of your Data, features, or a reduction in the amount of available capacity for your Data provided by the GMX Services. The amount charged to your Payment Account on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades.
3.7. You shall pay all costs of collection, including reasonable attorney's fees and costs, in the event any invoice requires collection efforts as determined in GMX’s sole reasonable discretion. Except where prohibited by Law, all accounts referred to a collection agency shall be subject to an additional fee, which must be paid in full before the account is reactivated.
3.8. International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversion of foreign currencies into EURO. Certain GMX Services will not be available to International Customers until GMX is able to receive satisfactory confirmation from such customer’s Payment Account provider, in GMX’s sole discretion, that the funds will be available for debit from the International Customer’s account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
3.9. You agree that GMX may start the provision of services immediately, and that you will not be entitled to cancellation or a "cooling off" period except to the extent a waiver of those rights is prohibited by law.
3.10. If your GMX Services are free, you may still incur expenses for internet access or data transmission from third-party service providers not affiliated with GMX.
Subject to and conditioned upon GMX's retained rights and all other terms and conditions set forth in this Agreement, GMX offers the GMX Services as soon as practicable after registration. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify GMX of any unauthorized uses of the account or any other breaches of security. GMX cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will GMX be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The GMX Services are subject to the following conditions and restrictions:
4.1. Email Services
4.1.1. GMX shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of server space allocated toyour Services for your non-exclusive use for the exclusive purpose of storing your Data and disseminating said data via the Internet through the use of GMX's Equipment for purposes consistent with this Agreement.
4.1.2. GMX, either directly or through its assignee or licensee, shall provide a such support as is outlined in the specifications for your Services or as otherwise shown on the gmx.com website. GMX is not obligated to provide any customer service or technical support except as specified in this Section 2, and cannot guarantee that your questions will be answered in a timely fashion or otherwise. Notwithstanding the foregoing, GMX at its sole discretion may at any time alter or cease providing the moderated bulletin board provided pursuant to this Agreement without any liability to GMX.
4.1.3. All use of the GMX Services shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or GMX's services by entering into multiple agreements.
4.1.4. Your use of the GMX Services, including but not limited to email traffic, and combined mailbox use and file storage per account shall not exceed that specified for your Services. You are responsible for monitoring your use of the GMX Services, and agree to check your email and download or delete your email on a regular basis in order to ensure compliance with this paragraph. Should your use of the GMX Services exceed the limits specified for Your Services GMX may return or reject any and all emails sent to you to the originating sender and delete or deny access to the storage space for your Data without liability to you. You agree that GMX may terminate your Account without notice or liability to you for usage in excess of permitted amounts.
4.1.5. GMX reserves the right to alter, amend, or discontinue the provision of some or all of the GMX Services, including but not limited to the provision of certain GMX Services to International Customers in a particular market, at any time in GMX's sole discretion.
4.1.6. You are responsible for backing up your Data on your own computer. GMX does not warrant or otherwise guarantee that it will back up your Data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of your Data. If any of your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account pursuant to this Agreement, GMX will have no obligation or liability to you, however observing the conditions pursuant to Section 7.
4.1.7. You represent and warrant that your email address does not infringe the copyright, trademark, or any other intellectual property rights of any person or company and that your email address is otherwise in compliance with the terms of this agreement, in particular the provisions of Section 8. GMX may suspend performance under or terminate this Agreement, cease transmission of emails or data associated with your account, permanently remove your Data from the GMX Equipment, revoke any and all email addresses assigned to you, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the provisions of Section 8, relevant Laws, or for any reason whatsoever, in its sole discretion. GMX assumes no liability in the event a particular email address is unavailable or otherwise not assigned to you, and does not warrant or guarantee that assigned email addresses do not infringe the rights of third parties, or that you will retain the rights to that email address for any period of time. You waive any and all clams you may have, now and forever, against GMX relating to the registration and use of your email address and agree to indemnify and hold harmless GMX from and against any such claims.
4.1.8. GMX reserves the right to terminate your e-mail address in the event that GMX’s rights to use certain domain names or e-mail addresses terminate or expire.
4.2.1. GMX may, in its sole discretion, provide you with GMX Software in combination with your Services. If you receive software from GMX under this Agreement and you are presented with a license agreement, the terms of that agreement apply. Otherwise, upon payment of all fees due and owing to GMX under this Agreement, GMX hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the GMX Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for GMX. Source code or other information pertaining to the logic design of the GMX Software is specifically excluded from the license granted hereunder.
4.2.2 Although the GMX Software is generally provided free of charge, GMX reserves the right to charge for the GMX Software or any upgrades therefore at any time.
4.2.3. You recognize that the GMX Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the GMX Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by GMX or, if sublicensed by GMX, by the respective owners of the Software. You further acknowledge that you have been advised that the GMX Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of GMX, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to GMX, and that its use and disclosure must be carefully and continuously controlled.
4.2.4. GMX or, if sublicensed by GMX, the respective owners of the GMX Software shall at all times retain title to all the GMX Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
4.2.5. Unless provided otherwise in the specifications for your Services, the GMX Software supplied hereunder is for your personal or business use. You shall not permit any third party to use the GMX Software or allow access to the GMX Software from sites outside of your home or business premises except as specifically authorized in writing by GMX. The GMX Software is to be used only for the purposes specified in this Agreement and specifically as restricted in the following three subparagraphs of this Section 4.
220.127.116.11. While this Agreement is in effect, or while you have custody or possession of any of the Software, you will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the GMX Software, whether such GMX Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to this Agreement, nor; (ii) provide or make the GMX Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of GMX. In order to protect GMX's trade secrets and copyrights in the GMX Software, you agree to reproduce and incorporate GMX's trade secrets or copyright notice in any copies, modifications or partial copies.
18.104.22.168. You agree to notify GMX forthwith if you obtain information as to any unauthorized possession, use or disclosure of any GMX Software by any person or entity, and further agree to cooperate with GMX at GMX's expense, in protecting GMX's proprietary rights.
22.214.171.124 Unless agreed otherwise in writing by GMX, the GMX Software may be used only on a single computer or workstation. GMX software designed for use on portable workstations may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the GMX Software on a network except to facilitate permissible installation of the GMX Software on computers attached to the network. You warrant and guarantee that all users of the Software shall be aware of and comply with the terms of this license.
126.96.36.199. Certain GMX Software is provided for online use as part of the GMX Services (the "GMX Online Software"). The GMX Online Software is hosted software which runs directly on GMX's servers, and you may not download, install, store or make any copies of the GMX Online Software, nor may you sublicense the GMX Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the GMX Online Software or any copies thereof and not to assist any third party in doing so. The GMX Online Software is designed to be used through the GMX user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. GMX reserves the right to modify or discontinue the GMX Online Software at any time without notice
except when this would have to be reasonably deemed inacceptable for you, which GMX shall duly take into account.
188.8.131.52. GMX may provide its customers with the ability to download certain third-party software (the "Third Party Software"). The license conditions governing the use of the Third Party Software may differ from GMX's own software licenses. Customers of GMX are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY GMX DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN GMX MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
184.108.40.206. In the event of termination of this Agreement, or upon any act which shall give rise to GMX's right to terminate, or upon the expiration of the license for GMX Software which is subject to a limited-duration license, any and all licenses granted under this Section 4.2 shall terminate automatically, and you will remove, erase or destroy the GMX Software and documentation and all copies thereof, wherever located, without demand or notice.
220.127.116.11. GMX may stop providing the Software or any updates thereto, including but not limited to the Third-Party Software, at any time without notice or any further liability to you, however observing the conditions pursuant to Section 7.
18.104.22.168. Certain Software (including Third-Party Software) may not be available to International Customers.
5. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR WARRANTIES
Receipt by GMX of data for storage and/or transmission via GMX's Equipment which are inconsistent with your warranties set forth in Section 8 herein shall not constitute an agreement by GMX to allow the GMX Services or the GMX Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of GMX's Services or Equipment, to continue to disseminate such data.
6. NO WARRANTIES BY GMX
THE GMX SERVICES AND GMX SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE GMX SERVICES IS AT YOUR SOLE RISK. GMX DOES NOT WARRANT THAT THE GMX SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES GMX MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE GMX SERVICES. NO WARRANTY IS MADE BY GMX REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND GMX HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GMX DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE GMX SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS.
7. GMX'S LIMITED LIABILITY
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL GMX, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE GMX SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, GMX'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, GMX DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE GMX SERVICES, AND GMX WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE GMX FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS SUBJECT TO THE RESTRICTION OF LIABILITY LIMITATION CLAUSE AT THE END OF THIS SECTION. SUBJECT TO THE AFORESAID CLAUSE AT THE END OF THIS SECTION, THE TOTAL LIABILITY OF GMX FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO GMX IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, IF ANY.
RESTRICTION OF LIABILITY LIMITATION: ANY AND ALL LIMITATION OF LIABILITY SET FORTH IN THESE GENERAL TERMS, ESPECIALLY IN THIS SECTION 7, DOES NOT APPLY IN CASES OF DAMAGES CAUSED BY INTENT BY GMX, ITS REPRESENTATIVES OR AGENTS OR BY GROSS NEGLIGENCE OF GMX. GMX IS ALSO LIABLE IN CASE OF CULPABLE VIOLATION OF LIFE; HEALTH OR BODY OR IN THE SCOPE OF MANDATORY LIABILITY OF THE PRODUCT LIABILITY CODE (Produkthaftungsgesetz), IF APPLICABLE: FURTHERMORE, GMX IS LIABLE IN CASE OF CULPABLE BREACH OF ESSENTIAL CONTRACTUAL OBLIGATIONS (DUTIES, THE FULFILMENT OF WHICH IS ESSENTIAL FOR THE PROPER IMPLEMENTATION OF THE CONTRACT AND ON WHICH OBSERVANCE THE CUSTOMER TYPICALLY RELIES ON AND MAY RELY ON). HOWEVER; IN SUCH CASE OF NEGLIGENT VIOLATION OF ESSENTIAL CONTRACTUAL DUTIES, THE LIABILITY OF GMX IS LIMITED TO REASONABLE FORESEEABLE DAMAGE THAT IS TYPICAL FOR SUCH CONTRACT.
8. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES
8.1 You acknowledge that only you may use your account and you agree and warrant that you shall not permit anyone else to use your account or authorize any third party to access your account on your behalf. You are responsible for all activity that takes place with respect to your account, and you agree that in the event GMX believes or has reason to believe, in its sole discretion, that you have breached this Agreement or any of the warranties in this Section 8, GMX may, without prior notice to you and in GMX's sole and exclusive discretion, suspend the provision of the GMX Services and/or terminate this Agreement, without any liability of any kind. As more completely set forth in Sections 6, 7 and 10, you waive any and all claims you may have, now and forever, against GMX relating to any action taken in under this Section 8.1, and agree to indemnify and hold harmless GMX from and against any claims brought by third parties as a result of your Data or your use of the GMX Services.
8.2. You agree and warrant that you shall not send mass unsolicited or unwanted electronic mail solicitations; that you shall not use your e-mail address for impermissible or abusive news group postings or excessive or repeated off-topic or commercial postings; that you will not send any form of junk mail; and that you shall not engage in any other form of spamming, spoofing, phishing, or mail bombing. GMX reserves the right to block mail from any source, including outgoing mail from or ingoing mail to your Account, which GMX believes, in its sole reasonable discretion, is being used to send such unsolicited e-mail. While GMX continues to actively review and implement new technology to ensure that its customers neither send nor receive unsolicited e-mail, there is no currently available technology that will totally prevent the sending and receiving of unsolicited e-mail.
8.3. You agree and warrant that your use of the GMX Services and GMX's Equipment, and all sales and distributions, advertisement, or promotion by any and all means, of any type(s) of Content including, but not limited to, executable files (such as .EXE), digitized audio/visual files (such as MP3), or copies of copyrighted works (such as .ZIP); goods, including, but not limited to, videotapes and CD-ROM products, and any type of services by you, which are advertised and/or promoted by, or are in any other way directly or indirectly associated with your use of the GMX Services or GMX Equipment, shall at all times comply with all applicable Laws.
8.4. You agree and warrant that you will neither store on nor allow to be transmitted by GMX's Equipment any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by an age-inappropriate-looking performer (i.e. someone who looks younger than eighteen years of age, regardless of their actual age) or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age by virtue of the advertising, script, make-up, demeanor, costuming, setting, etc., or which could otherwise result from or cause harm to minors.
8.5. You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted by GMX's Equipment shall be solely for business, entertainment and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, advertising and other matter shall be transmitted exclusively to consenting adults and only to places in which such materials comply with contemporary community standards.
8.6. You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted by GMX's Equipment shall not violate any Laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, incest, rape, sexual assault, actual physical violence, torture or disfigurement, or other content deemed objectionable by GMX, in its sole reasonable discretion.
8.7 You agree and warrant that you shall not damage, disable, overburden, or impair the GMX Services or interfere with anyone else’s use or enjoyment of the GMX Services.
8.8 You agree and warrant that you will not use the GMX Services to transmit messages which display, contain or link to any harmful matter or indecent materials or communications which are available to, or accessible by, minors; display or contain any material that consists of pornography, child pornography, or other obscene content, including but not limited to content involving or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age or which could otherwise result in harm to minors, all as determined in GMX’s sole discretion, or display or contain any material that consists of child pornography or which could otherwise result in harm to minors.
8.9. You agree that in the event that GMX is informed by any party that you are using the GMX Services to transmit messages which infringe the copyright of any party, or violate the right of publicity or privacy of any party, or consist of any other claim or violation of intellectual property rights of any kind, then GMX may, without prior notice to you and in GMX's sole and exclusive reasonable discretion, suspend the provision of the GMX Services and/or terminate this Agreement, without any liability – subject to Section 7 of these Terms – of any kind to GMX from either you or any third party, meaning your covenant to indemnify and hold harmless from any and all claims of third parties in this regard. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against GMX relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless GMX from and against any such claims.
8.10. You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, to reproduce and disseminate, via the Internet, all data which you store or otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the GMX Services or GMX's Equipment, and that your Data and the use or distribution of your Data does not infringe the intellectual property rights of others, including, but not limited to, copyrights, trademark and service mark rights, patent rights and rights of publicity. You agree that in the event that GMX is informed by any party that you are using the GMX Services to transmit messages which infringe the copyright of any party, or violate the right of publicity or privacy of any party, or consist of any other claim or violation of intellectual property rights of any kind, then GMX may, without prior notice to you and in GMX's sole and exclusive discretion, suspend the provision of the GMX Services and/or terminate this Agreement, without any liability of any kind to GMX from either you or any third party. As more completely set forth in Sections 6, 7 and 10, you waive any and all claims you may have, now and forever, against GMX relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless GMX from and against any such claims.
8.11. You agree and warrant that no data or other matter you store on or allow to be transmitted by GMX's Equipment shall constitute or contain or link to material which is libelous, slanderous, defamatory; which violates the right of publicity or privacy of any party; or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights.
8.12. You agree and warrant that no data or other matter you store on or allow to be transmitted by GMX's Equipment shall contain or link to any material which is offensive, harmful, violent, threatening, abusive or hateful, in GMX’s sole discretion.
8.13. You agree and warrant that any and all material(s) of every kind which you store or transmit using GMX's Services or Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the GMX Equipment or web site or another person's web site without authorization, or use the GMX Services to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
8.14. You agree and warrant that you shall not use any form of mass unsolicited electronic mail solicitations, news group postings, IRC posting or any other form of "spamming," "phishing," or "mail bombing," and GMX reserves the right to block mail from any source, including outgoing mail from your Account, which GMX believes, in its sole discretion, is being used to send such unsolicited email. While GMX continues to actively review and implement new technology to ensure that its customers neither send nor receive unsolicited email, there is no currently available technology that will totally prevent the sending and receiving of unsolicited email.
8.15. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the GMX Services or GMX's Equipment.
8.16. You agree and warrant that you shall not resell or redistribute the GMX Services or any part thereof, including but not limited to your GMX e-mail address, or use any unauthorized means to modify or reroute the GMX Services (or to attempt same).
8.17. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the GMX Services and that no taxing authorities shall have any claim against GMX or any persons affiliated therewith for the payment of such taxes.
8.18. You represent and warrant that you are over thirteen years of age and are fully competent to enter into this Agreement.
8.19. You agree to comply with all Laws rules regarding online conduct and acceptable Content.
8.20. Residents of countries which are serviced by a GMX affiliate are required to contract with those GMX affiliates, and you represent and warrant that you are not a resident of one of those countries.
8.21. You agree to abide by export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your GMX account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
8.22. You agree not to use your Account for the storage of files other than in the course of normal email usage or as provided otherwise in the specifications for your Services.
8.23. With respect to any advertising content you may transmit through the Services, you agree and warrant that all such advertising content shall comply with all Laws, and shall not result in consumer fraud, product liability, or damage of any kind to any third party.
9. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
9.1 GMX is a service mark of GMX, all rights reserved. The trademarks, logos, and service marks displayed on this web site (collectively, the "Marks") belong to GMX and/or its affiliates or third parties which have licensed those rights to GMX ("Partners"); GMX and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner's prior written consent. All other trademarks, product names, and company names and logos appearing on GMX's web site are the property of their respective owners.
9.2 Unless expressly stated otherwise on the GMX web site, you should assume that all content, images, and materials appearing on this web site (collectively the "GMX Content") are the sole property of GMX. International copyright laws and treaties protect such GMX Content. You may not use, reproduce, display, or sell any GMX Content without GMX's prior written consent. You may not link to any page within GMX's web site or frame any portion of the GMX web site in such a way as to remove, cover, alter, or obscure GMX’s trademarks or as would otherwise confuse viewers as to the origin of the content.
10. YOUR INDEMNIFICATION OF GMX
You agree that you shall fully defend and indemnify GMX, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 8 or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless GMX, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that GMX shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
11. NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between GMX and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between GMX and you. GMX shall have no control or ownership interests of any kind in your business. GMX shall have no direct financial or other interest in, nor in any way "own" any online venture pertaining to your use of the GMX Services or GMX's Equipment. GMX's relationship to you shall be restricted to matters pertaining to the provision of the GMX Services as set forth in this agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS
Any and all services which are or may be provided to you by GMX pursuant to this Agreement, including the licensure of rights herein, are not exclusive and nothing in this Agreement shall limit or restrict GMX from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict GMX from engaging in any activities similar to yours or in competition with you.
13. NO EDITORIAL CONTROL BY GMX
GMX and you agree that, consistent with the strict policy of GMX, and in reliance on your express warranties regarding the substantive content of data, advertisements, communications, messages and other materials which you shall store and/or otherwise disseminate via the use of GMX's Services or Equipment, GMX shall neither have nor exert any editorial or other subjective control over the substantive content of such data, advertisements, communications, message or other materials. GMX exercises no control over information which is found on the internet, except for its own web site, and cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
14.1. It is GMX's policy to respect your privacy. GMX will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless GMX deems it necessary, in its sole discretion, to:
14.1.1. comply with legal process or other legal requirements or other requests for information from law enforcement officials;
14.1.2. protect and defend the rights or property of GMX or its officers, agents, affiliates, and licensees;
14.1.3. carry out its obligations under or enforce this Agreement; or
14.1.4. protect the interests of other GMX customers.
14.2. NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, GMX RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE REASONABLE DISCRETION, TO DISCLOSE INFORMATION OR MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER'S ACCOUNT, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
14.4. Your personal information, including information regarding nonpayment or other misuse of the GMX Services, may be transferred to other affiliated entities. If you do not consent to this transfer, do not accept the terms and conditions for the GMX services.
14.5. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT GMX MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR ACCOUNT PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
16. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER
Failure of GMX at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of GMX.
17.1. GMX may provide notice to you via email sent to the email address associated with your Account at the time such notice is sent. Such notice is deemed effective upon the date of transmission, whether you receive it or not, and shall be deemed written notice for the purposes of this Agreement.
17.2. You may provide notice to GMX in one of the following ways:
17.2.1. by personal delivery;
17.2.2. by addressing the notice as indicated above and depositing the same by registered or certified mail, postage prepaid, in European mail;
17.2.3. by facsimile transmission; or
17.2.4. by email and registered or certified mail.
17.3. Such notice, statement or other document so delivered to GMX, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice by email to GMX shall be deemed ineffective, null and void unless a copy of such notice is also sent by registered or certified mail, and postmarked not more than five days subsequent to the giving of email notice. Any such email notice to GMX shall be deemed effective as of the date on which GMX receives the certified or registered mail notice.
18. FORCE MAJEURE
18.1. In the event of "force majeure" (as defined below), GMX may terminate this Agreement without liability to you. For purposes of the Agreement, "force majeure" shall mean circumstances or occurrences beyond GMX's reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which GMX cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the GMX Services are located or maintained or through which the GMX Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
18.2. GMX reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the GMX Services (or any part thereof) with or without notice, however not affecting current duties already committed to in case no force majeure is established, including the right to cease all business operations in the European Union or elsewhere. You agree that GMX shall, subject to Section 7, not be liable to you or to any third party for any modification, suspension or discontinuance of the GMX Services.
19. NO ASSIGNMENT BY YOU; ASSIGNMENT BY GMX
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without GMX's prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. GMX may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion, without consent by or notice to you, save that according to the laws, the assignment shall be given notice about in order to not let the debtor fulfil by performance towards the assignor, but only towards the assignee.
20. JURISDICTION, VENUE, AND WAIVER OF JURY TRIAL
20.1. YOU AGREE TO NEGOTIATE WITH GMX IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT.
20.2. ANY AND ALL DISPUTES WHICH ARE NOT FIRST RESOLVED INFORMALLY MUST BE BROUGHT IN THE COURTS OF THE FEDERAL REPUBLIC OF GERMANY, COMPETENT FOR THE PLACE OF THE REGISTERED SEAT OF GMX, WHICH SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. You consent to personal jurisdiction and venue in such courts and you waive any challenge which you have or which may hereafter arise to personal jurisdiction or venue in such courts.
20.3. Neither you nor GMX may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. YOU AND GMX ACKNOWLEDGE THAT THIS SECTION 20.4 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
20.4. This Agreement shall be interpreted according to the laws of the Federal Republic of Germany.
21. SUCCESSORS AND ASSIGNS
This agreement shall be binding upon and inure to the benefit of the Parties' respective heirs, personal representatives, executors, administrators, successors and assigns.
22. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of GMX has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and you hereby acknowledge and agree that you have not executed this Agreement in reliance upon any such representation or promise.
23.1. This Agreement may be materially altered by GMX by posting the new version of the Agreement at www.gmx.com and if posted in this manner, shall be effective immediately upon posting such notice. You accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change.
23.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of GMX. No additional or conflicting term in any other document used by you will have any legal effect.
24. STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
Correspondence sent by mail, courier, or personal service should be to the following address:
1&1 Mail & Media GmbH
Reporting Copyright and Trademark Infringement
1&1 Mail & Media GmbH (“GMX”) respects the intellectual property of others. If you think GMX or one of its customers is violating your copyrights, please send proper notice to GMX. Such notices should be sent to the following:
1&1 Mail & Media GmbH
Notice of trademark violations on a servers operated by GMX should be sent to Customer Care using the contact information listed above. Please provide the following information for any trademark claims:
• The trademark or service mark which has allegedly been infringed along with the date of first use and the products or services associated with the mark;
• The mark which you claim is infringing your mark along with a precise location or other information as to the specific file server which is believed to infringe your mark and the products or services associated with that mark; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is the owner of the mark or is otherwise authorized to act on behalf of the owner of the mark that is allegedly infringed, and that the use of the mark is not defensible.
GMX will investigate and forward credible claims of trademark infringement to its customer. GMX may, in its sole discretion, suspend or terminate customer accounts which it believes infringe the rights of third parties, but is under no legal obligation to do so.