Hetzner Hosting Terms (Specific Terms)
(Last updated: 1 July 2009)
(Previous versions: 1 August 2007, 12 February 2008)
Hetzner (Pty) Limited (Registration No. 2005/023926/07) ("Hetzner") is a leading South African web hosting service provider that provides a range of web hosting Services to its Customers. Hetzner provides the Services to its Customers subject to the Hetzner Hosting Terms.
1. Interpretation and Definitions
1.1 Unless the context clearly indicates to the contrary, any term defined in the General Terms will, when used in these Specific Terms, bear the same meaning as defined in the General Terms.
1.2 Unless the context clearly indicates to the contrary, the following words will have these meanings:
1.2.1 "Abusive Content" means content that Hetzner considers to be defamatory, discriminatory, obscene, lewd, offensive, threatening, abusive, harassing, harmful, hateful, as hatespeech, or which contains child, explicit or violent pornography, content which may be harmful to minors, religious or racial slurs or threatens or encourages bodily harm or the like or which may violate any person's rights, regardless of whether the content is accessed, transmitted, propagated, distributed, created or stored in a public or private context;
1.2.2 "Domain Name/s" means the domain name or names that is/are the subject of the Domain Services;
1.2.3 "Domain Services" means the Services Hetzner renders to the Customer in respect of the Domain Name/s as set out in these Special Terms;
1.2.4
"Email" means the Services Hetzner renders to the Customer of
(i) an email box provided by Hetzner to the Customer on Hetzner's systems, which includes an email address or aliases to the email address from time to time and
(ii) best endeavours virus protection and filtering for unsolicited commercial email (SPAM);
1.2.5 "General Terms" means the general terms and conditions governing the contractual relationship between the Parties, duly supplemented by the Specific Terms;
1.2.6
"Harmful Code" means any computer code that:
(i) is designed to disrupt, disable, harm, or otherwise impede in any manner the operation of any software, hardware or network (generally referred to as "viruses", "Trojan horses" or "worms");
(ii) would disable any software, hardware or network or impair in any way its operation based on the running out of a period of time, exceeding an authorised number of copies, advancement to a particular date or other numeral (generally referred to as "time bombs", "time locks", or "drop dead" code);
(iii) would permit any person to access any software, hardware or network of any other person without consent (generally referred to as "trap", "access code", "back door" or "trap door" codes); or
(iv) any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause the software, hardware or networks of any person to cease functioning or to damage or corrupt data, storage media, programmes, equipment or communications, or otherwise interfere with operations;
1.2.7 “Illegal Content” means content in violation of any law;
1.2.8 "Location" means the Hetzner Data Centres situated in Cape Town & Johannesburg as well as in Germany or any other address indicated by Hetzner from time to time;
1.2.9
"Misrepresentation" by a Customer includes
(i) actions designed to deceive, mislead, defraud, or otherwise make incorrect representations to any person regarding any fact or circumstance,
(ii) impersonating or attempting to impersonate or otherwise misrepresenting your identity to any person for whatever purpose,
(iii) altering the content of communications received by you and thereafter forwarding it to others without indicating the nature of the alterations, or
(iv) forging or otherwise manipulating origination details and data on any electronic data message generated by the Server with a view to disguising or deleting the origin of anything posted or transmitted including the use of "Socks Proxies", "EZBounce", "Vhosts", "BNC's" or any other software or hardware methods used to disguise or misrepresent your own IP address;
1.2.10 "Registrar" means the entities referred to in clause 5, any replacement, or any other entity who attends to the administration of Domain Names;
1.2.11 "Server" means the computer hardware, machinery, and equipment on which the software operates;
1.2.12 "Server Hosting" means the Services that Hetzner renders to the Customer;
1.2.13 "Software" means the operating system and applications provided by Hetzner;
1.2.14
"System Abuse" means any conduct that does or may:
(i) damage, impair, overburden, or disable,
(ii) interfere with any other person's use of, or
(iii) compromise or tamper with the security of, including spamming and mass messaging, the use of software and technologies known as "floodbots", "clonebots", "automated client" ( e.g. "bots", "fserv" or "script"), nuking and nuking tools (e.g."7th Sphere")Hetzner's or any other person's software, hardware, systems, networks, or the Server.
2. Undertakings and Acknowledgements
2.1 Hetzner undertakes to use its reasonable endeavours to provide the Services to the Customer on a continuous basis and for the duration of the Customer's agreement with Hetzner.
2.2 Although Hetzner uses reasonable care and diligence to ensure that the Services are available, accurate, complete, correct, error free, secure, up to date, and reliable, the Services are rendered "as is" and "as available" and is used at the Customer's own discretion and risk.
3. Hosting terms
General
3.1 Hetzner is a member of ISPA and abides by and upholds the ISPA Code of Conduct.
3.2 Hetzner provides Servers, space on shared Servers and hosting of Customer Servers, together with web services and email facilities for web sites controlled by individuals or companies that do not have their own web servers.
3.3 Hetzner will only be required to provide the Customer with the Server type and configuration that is advertised by Hetzner at the time the Customer decides to procure the Service from Hetzner. If an existing Customer wishes to upgrade to a new Server, Hetzner may charge the Customer an additional setup fee.
3.4 Hetzner will use its reasonable endeavours to verify the identity of a Customer’s representative wanting to access the Customer’s Server at the Location, However, Hetzner will not be liable for any loss or damage suffered by the Customer (whether direct, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage) if a person is not authorized by the Customer to access the Customer’s Server at the Location. The Customer must notify Hetzner in writing of its representatives who are entitled to access.
3.5 The Customer must not:
3.5.1 make any Misrepresentation;
3.5.2 post, upload or transmit any Abusive Content or Illegal Content by means of the Server or through Hetzner's information and communications facilities;
3.5.3 replicate or store Abusive Content or Illegal Content on the Server;
3.5.4 perform System Abuse;
3.5.5 propagate, distribute, or transmit Harmful Code, whether or not damage is actually caused;
3.5.6 access any of the Hetzner or any third party hardware, software or network without authorisation or through hacking, password mining or any other means; or
3.5.7 help any third party to do any of the above.
3.6 If Hetzner, in its sole and unfettered discretion, determines that the Customer has breached any of 3.5.1 to 3.5.7 above, Hetzner may exercise any rights it may have available to it in law, including (without notice) the right to terminate access to any Services, or suspend or terminate any Services.
Content
3.7 Hetzner has no knowledge of, nor interest in Customer content hosted by Hetzner or published by Hetzner on the Customer's behalf on a Server or a shared hosting account and further that Hetzner does not in any way contribute or approve the content.
3.8 Nothing that Hetzner does in the performance of its obligations under the Service will be construed as an assumption of responsibility or liability by Hetzner arising from or in connection with any content. In particular, the limitation of liability in the General Terms will apply specifically to any loss, destruction, or corruption of the Customer's data, irrespective of the cause, including Hetzner's negligence and any system error or failure, whether foreseen or unforeseen.
Managed Shared Hosting (Web Hosting)
3.9 Hetzner will make an account available on a Server, where the Server is shared with other Customers. The Server will (at all times) remain the property of Hetzner. Hetzner will setup, as per the standard managed hosting server configuration, the Server at the Location on behalf of the Customer. Hetzner will not be responsible for the use by the Customer of any software that it may install (and any vulnerabilities including traffic generated as per clause 3.9 that may result from the use of the software). The software is accordingly used by the Customer at its own risk.
3.10 In this environment, a Customer may impact negatively on another Customer at times. If Hetzner deems a Customer's actions or activity on the Customer's account to be negatively affecting another Customer, Hetzner reserves the right to relocate or disable the account without any prior notice. If the account is found to be in violation of Hetzner's Acceptable Use Policy, it may result in termination of the account if the Customer does not take corrective measures.
3.11 Where appropriate, Hetzner will in its sole discretion, maintain the software on its managed servers.
3.12
The Customer will remain solely responsible for all bandwidth and traffic related to his hosting account. This includes regularly monitoring usage via konsoleH and the Customer will be liable for any over-usage charges. Any traffic management and reporting tools provided by Hetzner are provided solely to assist the Customer in this process, but do not absolve the Customer of responsibility, nor place any responsibility on Hetzner. If the Customer elects to make use of any traffic management and reporting tools:
(i) all information will not be real time information and there will always be a one day delay in the furnishing of information; and
(ii) Hetzner will not be responsible for any traffic spikes, information or denial of service attacks, or any loss or damage sustained by the Customer resulting from the information not being provided in real time.
Hetzner is not entitled to provide the Customer with further information on traffic usage other than what it reported via konsoleH.
3.13 Hetzner is not responsible for any licensing of any software used by the Customer.
Managed Dedicated Hosting
3.14 Hetzner will make a Server available to the Customer for its own exclusive use. The Server will at all times remain the property of Hetzner. Hetzner will setup and manage the Server at the Location on behalf of the Customer.
3.15 All server log files remain the property of Hetzner. If the Customer requests to be furnished with a server log file, a copy of the relevant log file will be provided to the Customer.
3.16 The Customer must not remove the Server from a Location
3.17 Hetzner will manage the Server, including the hardware, software, and upgrades at Hetzner's sole discretion.
3.18 Clause 3.12 will also apply to these Services
3.19 If the Server becomes the target or source of any form of denial of service attack and Hetzner believes that there is no other possible solution at that point in time, Hetzner reserves the right to disconnect the Server from the network.
3.20 Hetzner will not be responsible for the use by the Customer of any software that it may install (and any vulnerabilities including traffic generated as per clause 3.16 that may result from the use of the software). The software is accordingly used by the Customer at its own risk.
3.21 Hetzner is not responsible for any licensing of any software used by the Customer.
Managed Hosting (Shared and Dedicated) Service Availability and Service Level Guarantee Network Uptime Guarantee
3.22 Hetzner guarantees that its network will be available 99.9% of the time in any month, excluding scheduled maintenance. This means that the Customer should not experience network downtime of more than 43 minutes in any month counted from the first day of every month. Network uptime includes functioning of all network infrastructure, including routers, switches, firewall, and cabling. Network downtime exists when a Customer is unable to transmit and receive data to and from Hetzner's Managed Service and is measured according to Hetzner's monitoring system.
3.23 If network uptime is less than 99.9% (i.e. downtime exceeds 43 minutes in a given month), Hetzner will credit the Customer 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of the Customers' monthly fee for the affected hosting account or server).
3.24
The Customer will not receive any credit:
(i) if there is a degradation of the Service outside Hetzner's control,
(ii) during scheduled maintenance windows,
(iii) on the happening of a force majeure event, or
(iv) where the downtime is attributable to failure of access circuits to the Hetzner network, Domain Name Server issues outside the direct control of Hetzner, DNS propagation, negligent Customer acts or omissions or outages elsewhere on the Internet that hinder access to the Customer's hosting account.
Hetzner is furthermore not responsible for browser or DNS caching that may make the Customer's website appear inaccessible when others can still access it. These exclusions will not apply where the problems arise from Hetzner server links to the Internet or Hetzner routers.
3.25 If the Customer wishes to exercise its right, the Customer must request it by sending an e-mail to Hetzner at .(JavaScript must be enabled to view this email address). The e-mail must include the domain or server name associated with the Customer's account in the "subject" line. Each request must include the Customer's account number as well as the dates and times of the network unavailability. The request must be received within 48 hours of the downtime. Only once Hetzner confirms the network unavailability according to its monitoring system, will the credits be supplied to the Customer within two billing cycles after Hetzner's receipt of the requests, in accordance with Hetzner's Refund Policy. Despite anything to the contrary, the total amount credited to the Customer in a particular month will not exceed the total hosting fee paid by the Customer for the month in question.
TruServTM Dedicated Hosting
3.26 Hetzner will make a Server available to the Customer installed with the latest version of an operating system of the Customer's choice, from a list of available options provided by Hetzner. If the Customer elects to have a Microsoft operating system installed, as provided by Hetzner, the Customer is bound by the licensing terms & conditions of the relevant Microsoft Software with effect from when the Microsoft Software is first installed on the Server.
3.27 The Customer will manage the operating system and all software on the Server. Hetzner will not and has no obligation to become involved in any aspect of managing the Server apart from the hardware.
3.28 The allocated Server remains the sole property of Hetzner.
3.29 If the Customer requests any deviation from the standard hardware offering and Hetzner will provide the non-standard hardware, but the cost will be passed directly on to the Customer. The hardware remains the property of Hetzner due to the costs associated with managing the hardware. If the Customer opts for an onsite spare for the hardware, the spare components will remain the property of the Customer.
3.30 Where Hetzner supplies and installs the software, it will do so in accordance with the specifications agreed to between the Parties. For that purpose, the Customer will supply Hetzner with all the relevant information and co-operation needed to enable Hetzner to do the installation. If there are any costs involved with the software, these will be for the Customer's account.
3.31 Where appropriate, the Server may be covered by the vendor's standard warranties and guarantees. The Customer will not engage in any action that contravenes or voids the vendor's terms of warranty or guarantee. In the event that the Customer engages in any action that contravenes or voids the vendor's warranty, the Customer will bear the costs of any repairs, replacement of or extended warrantees or guarantees regarding the Server.
3.32 The Customer must not remove the Server from a Location, without the written permission of Hetzner and without providing written confirmation that it has taken possession of the Server.
3.33 If the Customer’s Server becomes the target or source of any form of denial of service attack, Hetzner reserves the right to disconnect the Server from the network should it deem that no other solution is possible at that stage.
3.34 Hetzner will not be responsible for the use by the Customer of any software that the Customer may install (and any vulnerabilities including traffic generated as per clause 3.28 that may result from the use of the software). The software is accordingly used by the Customer at its own risk.
3.35 Clause 3.12 will also apply to these Services..
3.36 Hetzner is not responsible for any licensing of any software used by the Customer, other than where the Customer is leasing Microsoft software through Hetzner.
TruServTM Dedicated Hosting Hardware Guarantee
3.37 Hetzner will provide the following limited support to the Customer as part of the Services: the repair or replacement of network cards, patch cables, hard drives, central processing units (CPUs), fans that cause a CPU to fail, memory, motherboards, power supplies and floppy drives ("TruServ™ Problems") at no cost to the Customer. If Hetzner is required to install a new operating system, it will only be obliged to do so with the latest version of the operating system, unless the Customer requests otherwise. In that event, the Customer will procure the relevant operating system software.
Support and Service Level Guarantee
3.38 This Guarantee only applies to TruServ™ Dedicated Hosting Customers. Hetzner will endeavour to respond to all TruServ™ Problems that specifically relate to server hardware within 90 minutes of the problem having been reported to it telephonically. Hetzner will endeavour to resolve the Problems within 90 minutes of the incident having been reported to it.
3.39 If Hetzner does not Resolve (as defined below) the TruServ™ Problem within 90 minutes or the extended period as Hetzner may advise, Hetzner will provide the Customer with a credit equal to one month's worth of the base hosting fee. For purposes of this clause 3.37 "Resolving" means that the Customer's Root Server that was originally provided by Hetzner responds to a ping as measured by Hetzner's network monitoring system. If the Customer's TruServ™ Server not being configured to respond to ping requests, the Customer will supply Hetzner with another means of determining that the Server is visible on the network. A failure on the part of the Customer to do so, will void Hetzner's obligations under this clause 3.39.
Furthermore, it is understood that the server restore time from a back-up depends on the volume of the customer's data to be retrieved, which could result in several hours downtime. In such a case, Hetzner is not obliged to provide the customer with a credit as per clause 3.39.
Network Uptime Guarantee
3.40 Hetzner guarantees that its network will be available 99.9% of the time in a given month, excluding scheduled maintenance. This means that the Customer should not experience network downtime of more than 43 minutes in any given month counted from the first day of every month. Network uptime includes functioning of all network infrastructure including routers, switches and cabling, but excludes services or software running on the Customer's server. Network downtime exists when a Customer is unable to ping the server and is measured according to Hetzner's monitoring system.
3.41 If network uptime is less than 99.9%, (i.e. downtime exceeds 43 minutes in a given month), Hetzner will credit the Customer 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of the Customers' monthly fee for the affected hosting account or server).
3.42
The Customer will not receive the credit if the TruServ™ Server problem is attributable to:
(i) scheduled maintenance,
(ii) a degradation of the Service outside Hetzner's control,
(iii) a force majeure event;
(iv) negligent acts or omissions on the part of the Customer that result in the operating system failing;
(v) the Customer requesting Hetzner to reinstall a version of the operating system software other than the latest version of the operating system software; or
(vi) the Customer being unavailable and Hetzner being unable to establish contact with the Customer to resolve the problem; or
(vii) the Customer failing to follow the prescribed procedure timeously or at all, as provided for in 3.39.
3.43 If the Customer wishes to exercise its right, the Customer will request it by sending an e-mail to Hetzner at .(JavaScript must be enabled to view this email address). The request must be received by Hetzner within 48 hours of the incident being reported and must include the Customer's account number, the Customer's name as listed on the Hetzner invoice, the date and approximate time of the problem and the TruServTM Server identification code/s or the effective Server. Only once Hetzner confirms the network unavailability according to its monitoring system, will the credits be supplied to the Customer within two billing cycles after Hetzner's receipt of the requests, in accordance with Hetzner's Refund Policy. Despite anything to the contrary, the total amount credited to the Customer in a particular month will not exceed the total hosting fee paid by the Customer for the month in question.
Custom Hosting Solutions (CHS)
3.44 Hetzner renders the CHS Service to the Customer in accordance with the proposal which has been accepted by the Customer, together with any written specification that has been agreed to between the parties and these Specific Terms & Conditions, the Hetzner General Terms & Conditions and Acceptable Use Policy.
3.45 When Hetzner makes a Server(s) available to the Customer for its own exclusive use, the Server(s) will at all times remain the property of Hetzner. The Customer must not remove the Server from a Location. CHS will setup and manage the Server at the Location on behalf of the Customer.
3.46 All Server log files remain the property of Hetzner. If the Customer requests to be furnished with a Server log file, a copy of the relevant log file will be provided to the Customer.
3.47 Hetzner will manage the Server(s), including the hardware, agreed Software, and upgrades at Hetzner's sole discretion. CHS Customers will be informed prior to any adjustments or upgrades and a suitable time will be agreed upon between parties.
3.48 Where Hetzner supplies and installs the Software, it will do so in accordance with the written specifications agreed to between both Parties. For that purpose, the Customer will supply Hetzner with all the relevant information and co-operation needed to enable Hetzner to do the installation. If there are any costs involved with the Software, which are not being incurred by Hetzner prior to it contracting with the Customer, these will be for the Customer's account. Should CHS assistance be required for the installation of the Software, the Customer will be charged according to Hetzner's standard hourly rates.
3.49 Where appropriate, Hetzner will in its sole discretion, maintain the Software on the Customer’s CHS Servers.
3.50 The provisions of clause 3.12 will also apply to these CHS Services.
3.51 Should the Server(s) become the target or source of any form of denial of service attack and Hetzner believes that there is no other possible solution at that point in time, Hetzner reserves the right to disconnect the Server(s) from the network.
3.52 Hetzner is not responsible for any licensing of any Software used by the Customer.
3.53 Hetzner will not be responsible for the use by the Customer of any Software that it may install (and any vulnerabilities including traffic generated as per clause 3.12 that may result from the use of the Software). The Software is accordingly used by the Customer at its own risk.
Troubleshooting, ad-hoc and emergency work
3.54 Any troubleshooting the Customer requests will be charged at Hetzner's standard hourly rate. If the cause turns out to be due to the gross negligence on Hetzner’s part, these charges will be waived. Whether or not an act of gross negligence has been committed will be determined by Hetzner’s senior management, in their sole discretion.
3.55 Should the Customer require any ad-hoc work to be done out of Business hours (as defined in clause 3.59), the Customer must specifically schedule this with Hetzner. Hetzner will only attend to emergency work outside of Business hours.
3.56 Hetzner reserves the right to invoice for time spent troubleshooting issues that are determined to be outside Hetzner’s control that Hetzner cannot reasonably be expected to have prevented or solved quickly. Hetzner alone shall determine what is reasonably within or outside its reasonable control.
CHS Service Fees
3.57 Hetzner shall have the right to increase the CHS Service Fees annually following the anniversary of the commencement date of the services to the Customer ("the Anniversary Date"). Hetzner will provide the Customer with written details of any such increase at least 30 days prior to each Anniversary Date and any amendment or variation of the Service Fees will be deemed to be an amendment of the Hetzner Hosting Terms. If the Customer objects to the increase in the Service Fees, it can terminate its relationship with Hetzner under clause 14.7 of Hetzner’s General Terms & Conditions.
CHS Support and Service Level Guarantee (SLA)
3.58 The CHS Service is accompanied by Hetzner’s 99.9% network uptime guarantee. SLA claims, as defined in Hetzner’s standard Terms & Conditions, are only applicable to the standard, fixed monthly charges. Any ad-hoc time and 3rd party costs (e.g. hardware, traffic over-usage) are exempt from any form of SLA claim.
3.59
Service disruptions will be attended to within
(i) 15 minutes during business hours and
(ii) 60 minutes out of business hours.
Business hours are Monday to Friday between 08:00 and 17:00, excluding public holidays.
CHS Hardware Guarantee
3.60 Hetzner will endeavour to respond to all CHS problems that specifically relate to Server hardware within 90 minutes of the problem occurring. If Hetzner does not resolve the Server problem within 90 minutes or the extended period as Hetzner may advise, Hetzner will provide the Customer with a credit equal to one month's worth of the base hosting fee.
3.61 Furthermore, it is understood that the Server restore time from a back-up depends on the volume of the Customer's data to be retrieved, which could result in several hours downtime. In such a case, Hetzner is not obliged to provide the Customer with a credit as per clause 3.58.
Network Uptime Guarantee
3.62 Hetzner guarantees that its network will be available 99.9% of the time in any month, excluding scheduled maintenance. This means that the Customer should not experience network downtime of more than 43 minutes in any month counted from the first day of every month. Network uptime includes functioning of all network infrastructure, including routers, switches, firewall, and cabling. Network downtime exists when a Customer is unable to transmit and receive data to and from Hetzner's Managed Service and is measured according to Hetzner's CHS monitoring system.
3.63 If network uptime is less than 99.9% (i.e. downtime exceeds 43 minutes in a given month), Hetzner will credit the Customer 5% of the base monthly fee for every 30 minutes of downtime (up to 100% of the Customers' monthly fee for the affected hosting service or server).
3.64 Should a CHS Customer have a High Availability solution as part of the CHS proposal agreement, an additional SLA will be agreed upon in the proposal, signed by the Customer.
3.65
The Customer will not receive any credit:
(i) if there is a degradation of the Service outside Hetzner's control,
(ii) during scheduled maintenance windows,
(iii) on the happening of a force majeure event, or
(iv) where the downtime is attributable to failure of access circuits to the Hetzner network, Domain Name Server issues outside the direct control of Hetzner, DNS propagation, negligent Customer acts or omissions or outages elsewhere on the Internet that hinder access to the Customer's hosting account.
3.66 Hetzner is furthermore not responsible for browser or DNS caching that may make the Customer's website appear inaccessible when others can still access it. These exclusions will not apply where the problems arise from Hetzner server links to the Internet or Hetzner routers.
3.67 If the Customer wishes to exercise its right, the Customer must request it by sending an e-mail to Hetzner at .(JavaScript must be enabled to view this email address). Each request must include the dates and times of the network unavailability. The request must be received within 48 hours of the downtime. Only once Hetzner confirms the network unavailability according to its monitoring system, will the credits be supplied to the Customer within two billing cycles after Hetzner's receipt of the requests, in accordance with Hetzner's Refund Policy. Despite anything to the contrary, the total amount credited to the Customer in a particular month will not exceed the total hosting fee paid by the Customer for the month in question.
Co-location Hosting
3.68 The Customer will supply his own Server and peripherals, which will be placed at the Location. The Customer will configure the Server to meet the Customer’s own specific requirements.
3.69 The Customer remains solely responsible for all aspects of the Server. Hetzner will be responsible for the facility the Server is stored in and for the network connection only.
3.70 Clause 3.12 will also apply to these Services.
3.71 If the Customer's Server becomes the target or source of any form of denial of service attack, Hetzner reserves the right to disconnect the Server from the network should it deem that no other solution is possible at that stage.
3.72 Hetzner will use its best endeavours to protect the Server from dust, dirt, water leakages, or destructive elements (including lightning, flooding, or fire). Hetzner will furthermore use its reasonable endeavours to provide a smooth, uninterrupted electrical power supply to the Server. Other than as specifically provided for in these Specific Terms, and without limiting the generality of the General Terms, Hetzner will not be liable for any loss or damage as a result of any failure on its behalf.
3.73 Without limiting the generality of the General Terms, Hetzner does not warrant that the Customer will always have access to the Server either remotely or at the Location, but will use its reasonable endeavours to provide the Customer with access reasonably required to access the Server, provided that the Customer will at all times, whilst at the Location, adhere to the standard health, safety and security guidelines laid down for Customers entering the Location from time to time. Hetzner may deny the Customer access to the Location if Hetzner at any time have reason to believe that the Customer is failing to comply with the procedures and guidelines.
3.74 Hetzner is not the owner of the Location where the Customer's Server is located. When the Customer is at the Location the Customer will be bound by any policies and notices relating to the Data Centre that the landlord might have in force from time to time. Hetzner is not responsible for the general building security. Hetzner will not be liable for any damages, injury, or death resulting from the Customer's access to, or use of, the Location or the equipment contained at the Location; or an inability to access and use the Location.
TruServTM Dedicated and Co-Location Hosting Fees
3.75 The Customer will pay Hetzner a base hosting fee for TruServ™ Dedicated Server and Co-Location hosting. The base fee will include the use of electricity to the extent provided to the Customer without additional charge and up to the amount of data transfer allowed each month without additional charge.
3.76 The base hosting fee does not include any other fees such as setup fees, fees relating to incremental bandwidth usage, fees for extra IP addresses, random access memory and hard drive beyond that which is available without additional charge as specifically specified in Hetzner's standard rates available on the Hetzner website that will be additional fees to be paid by the Customer.
4. Email terms
4.1 Hetzner will provide the following email related Services for Customers selecting shared or managed dedicated hosting only:
4.1.1 Filtering of unsolicited commercial email (SPAM): This is done on a best effort basis, without any guarantees, using appropriate best of breed technologies (e.g. SpamAssassin which is the most widely used open source filtering software);
4.1.2 Virus filtering: This is done on a best effort basis without any guarantees, using appropriate best of breed technologies (e.g. Clam that is a very popular open source solution).
4.1.3 An SMTP (simple mail transfer protocol) server for the sending of outgoing mail;
4.1.4 A POP3 (post office protocol) server for the downloading of incoming mail.
4.2 Hetzner will endeavour to make the Customer's email environment secure and reliable.
4.3
Hetzner will
(i) use its reasonable endeavours to support the setup and configuration; and
(ii) not be held responsible should there be any incompatibility between the Hetzner Systems and any other third party application.
4.4
The Customer will not use the Hetzner Email Service to:
(i) send messages or communications that are unsolicited, offensive, abusive, indecent, or obscene,
(ii) send messages causing annoyance, inconvenience, or anxiety to other users of the Internet,
(iii) send messages for the purposes of fraud or with the intention of committing a criminal offence; or
(iv) use the Email Service in a way that breaches the Acceptable Use Policy.
4.5 Hetzner may prevent the sending of bulk unsolicited Email, to or from a Server where (i) Hetzner identifies a Server that has an open mail relay, (ii) a significant volume of Email is sent from a Domain in a defined time scale; and (iii) Hetzner has received a complaint concerning unsolicited Email originating from a Hetzner hosted Domain.
4.6 Hetzner may disable a Domain held on Hetzner's Servers to prevent Hetzner's IP addresses being blocked by IP address blocking technologies or services, where Hetzner has any complaints concerning unsolicited Email originating from or unsolicited Email being sent to promote sites being hosted on a Hetzner Server. The Customer of the offending Domain will be obliged to pay any third party costs required to unblock Hetzner's IP address. Refusal to do so may result in termination of Hetzner's hosting services.
5. Domain Names terms
Registration
5.1 All Domain Names registered by Hetzner on behalf of the Customer within the .ZA domain name space, or registered by the Customer directly or through third parties are subject to the terms of the relevant domain name Registrar that may be amended from time to time. Hetzner utilises the Services of various Registrars to register generic Top Level Domains (gTLDs such as .COM and .ORG) as well as names in non-South African country code Top Level Domains (ccTLDs such as .uk and .eu), which registration is subject to the terms of the relevant Registrar or registry, as amended from time to time. Registration, maintenance, or transfer of a Domain Name is subject to the terms of the relevant Registrar operator who allocates and governs the Domain Name. Hetzner cannot guarantee the registration of any Domain Name selected by the Customer. Registrars used by Hetzner may change or be replaced from time to time.
5.2 Hetzner will use its best efforts to attend to the registration of a Domain Name or, where applicable, the transfer of an existing Domain Name as soon as reasonably possible after the commencement of the Domain Services. Hetzner will insert its details as the billing and technical contact of the relevant Domain Name/s, unless the Customer registers the domain itself or manages the domain record with the Registrar directly.
5.3 No Domain Name will become the property of Hetzner and Hetzner will not insert its details as the registrant of any Domain Name.
5.4 The Customer will pay Hetzner (in addition to any Service Fees) all reasonable expenses or charges relating to the registration, transfer, or renewal of a Domain Name. Hetzner will, as part of the Domain Services, host the Domain Name.
5.5 The Customer warrants in favour of Hetzner that: i. it is the lawful registrant of the Domain Name/s or it has the consent of the registrant to use the Domain Name/s or it is not prohibited by law or otherwise from registering the Domain Name/s; and ii. in using the Domain Name, it has not violated any Intellectual Property Rights of whatever nature of any person who may lawfully claim title of whatever nature to the Domain Name or to any word or name forming a constituent part of the Domain Name/s.
5.6 Hetzner has no interest in the Domain Name/s and nothing that Hetzner does in the performance of its obligations under the Domain Services will be construed as an assumption of responsibility or liability by Hetzner for attending to the Domain Services.
5.7 Hetzner does not guarantee that the Domain Name/s requested by the Customer is/are available for registration or that the use of the Domain Name/s will not infringe any third party rights. Domains are available on a first come, first serve basis and are available either through Hetzner or directly with a Registrar. Hetzner will not be held responsible if the Customer registers a domain through Hetzner, and provides incomplete or inaccurate information that will lead to a delay in the registration process, and the domain is subsequently taken by someone else.
5.8 Hetzner is not a Domain Name provider, but merely a third party agent acting on the Customer's instructions, to the extent that those instructions are possible and lawful.
5.9 The registration of the Domain Name/s and its/their future availability and use are subject to the terms of use of the relevant Domain Name Registrar
5.10 Hetzner charges an additional fee for the administrative processes involved in applying for, and where applicable, maintaining the registration of a Domain Name/s on behalf of the Customer.
5.11 Any Service Fees incurred in the process of applying for, renewal of, or maintenance of registration of the Domain Name/s will be borne exclusively by the Customer and are not refundable.
5.12 Any Internet Protocol (IP) address allocated by Hetzner to the Customer, will at all times remain the sole property of Hetzner who grants the Customer a non-exclusive, non-transferable licence to use the Internet Protocol address for the duration of the Hetzner Hosting Terms.
5.13 Without limiting the generality of the Hetzner Hosting Terms, the Customer indemnifies Hetzner and holds it harmless against any liability or claim made by any person for any loss or damages suffered or arising directly or indirectly from the use, display, or publication of the Domain Name/s.
Changes to the Domain Name
5.14. Hetzner may not cancel, transfer, or change the Domain Name/s, including transferring registration of the Domain Name/s from the registered holder to another person or entity, without being in receipt of:
5.14.1 written instructions from the Customer or its authorised agent to take action;
5.14.2 written instructions from the liquidator of an incorporated or unincorporated business, where the business has been wound up, whether provisionally or finally, whether compulsory or voluntary, to do so;
5.14.3 a written and valid resolution of the members/shareholders/trustees of a close corporation/company/trust authorising the transfer of the domain name from the close corporation/company/trust to the new registrant;
5.14.4 a written consent signed by all the partners in a partnership where a partner requests that the Domain Name be transferred to the partner;
5.14.5 a letter from the executor where the registrant of the Domain Name has died requesting that the Domain Name be transferred to a named entity;
5.14.6 an order of Court in relation to any of 5.10.1 to 5.10.5; or
5.14.7 being in receipt of an order of an Arbitration Tribunal of competent jurisdiction requiring action in any administrative proceeding to which the Customer is a party and which was conducted under the Uniform Dispute Resolution Policy adopted by ICANN, the Alternate Dispute Resolution Regulations applicable in South Africa or any similar proceedings in any other ccTLD or gTLD (see clause below).
Domain name renewal
5.15 Within 30 days prior to the renewal date of a .co.za domain name and within 60 days prior to the renewal date of all other domain names, Hetzner will submit a renewal reminder to the Customer via email. Should the Customer not want to renew the domain name, the Customer must give notice by clicking on the link provided in the renewal reminder e-mail and this will automatically instruct Hetzner not to renew the domain name. Such notice must be given at least 3 Business Days prior to the renewal date in the case of .co.za domain names and 33 Business Days prior to the renewal date in the case of all other domain names. Should the Customer not give notice as aforesaid, the domain name will automatically be renewed and a renewal fee will be added to the Customer’s invoice.
Default in respect of the Domain Service
5.16
If a Customer fails to pay Hetzner any cost or charge relating to the registration, renewal, update, change, or administration of any Domain Name, Hetzner may, in its sole and absolute discretion:
(i) exercise a lien over the Domain Name until the relevant cost or charge has been paid,
(ii) procure or allow the suspension, termination, or deletion of the Domain Name; or
(iii) transfer the Domain Name.
Termination of the Domain Service
5.17 If the Domain Service is terminated for any reason, Hetzner may, without incurring any liability or limiting the generality of the Hetzner Hosting Terms, notify the relevant Registrar or registry of the termination and to instruct the Registrar or registry to remove Hetzner or any of its systems as the host of the Domain Name/s even if no replacement is available.
5.18 In the event that any of the Registrars or registries amend, suspend or terminate its provision of a Domain Service or any other aspect of its services upon which Hetzner depends for the provision of the Domain Service to the Customer, Hetzner will use reasonable endeavours to ensure the continuance of the Domain Service. In the event that Hetzner is unable to ensure the continuance under any circumstances, Hetzner will not be liable to the Customer or any other third party for any loss or damages (as contemplated in the Hetzner Hosting Terms) incurred by the Customer or by any third party arising from, or in any way relating to, the termination of the Domain Services.
Domain Name Disputes
5.19 Various alternate dispute resolution mechanisms apply in respect of domain names registered globally, including the Uniform Dispute Resolution Policy adopted by ICANN for certain gTLDs, the Alternate Dispute Resolution Regulations applicable in South Africa and similar proceedings in other ccTLDs. These mechanisms allow for the resolution of disputes concerning the registration or use of a domain name.
5.20 Disputes between the Customer and any third party regarding the registration or use of any Domain Name registration may be brought under any available alternate dispute resolution mechanisms, Court, or Arbitration Tribunal.
5.21 Hetzner will not participate in any way in any dispute between the Customer and any third party. If the Customer involves Hetzner in any dispute, the Customer indemnifies Hetzner as provided for in clause 12 of the General Terms. The Customer will be responsible for all legal costs incurred by Hetzner on the attorney and own client scale.
6. Other Services
Hetzner offers third party services from time to time. While Hetzner makes every effort to select reliable vendors, maintain relationships and hold them accountable to ensure a reliable service on behalf of Customers, Hetzner does not control and is not responsible for those services and the Customer accordingly uses those third party services at its own risk. Under no circumstances whatsoever shall Hetzner be liable for any loss or damage suffered by the Customer as a result of its use of such third party services including any interruption or unavailability of such third party services. Hetzner accordingly disclaims all liability arising from the Customer’s use of such third party services.
