1 Services of the provider, payment, contract period/termination
(1) The scope of the individual services is based on the current service description in force at the time of placing the order.
(2) If no other agreement has been expressly reached, the provider shall also be entitled to instruct expert staff or third parties to provide the services incumbent upon him. If active co-operation is required on the customer’s part on another server, e.g. during the transfer of a web space package or other data stored on the provider’s servers, the customer shall provide such co-operation in accordance with the provider’s instructions and within the stipulated time.
(3) If no other agreement has been reached the provider shall be entitled to demand payment in advance for all services ordered by the customer for the respective period.
All webhosting packages (“virtual servers”) offered by the provider (Tomattos) assume a minimum service period of twelve months with an automatic extension of the agreement and the corresponding domains/servers for twelve months.
All server packages (dedicated servers, colocated servers, VPS, game servers) offered by the provider (Tomattos) assume a minimum service period selected by the customer when placing the order with an automatic extension of the contract and the corresponding domains/servers for the minium service period chosen by the customer.
(4) Once the payment which had been made by the customer in advance for the agreed term has expired the contract is automatically terminated.
The domains associated with the packages/servers however, are charged for the complete contract period (this is dependent upon the domain extension and can be seen here) and must be terminated at least 4 weeks before expiry of the contract period in order to prevent automatic extension of the agreement (an extension is equivalent to renewed registration in respect of the contract period). If the package/server is terminated before the end of the contract for the relevant domain(s) or if the contract has not yet ended or has not yet been renewed, you will be charged separately to cover the remaining months of the domain service. The amount charged depends on the extension of the domain (for a complete list, please click here).
(5) Given that the customer is placing the order as a private customer (as defined by § 13 BGB), the following applies: The customer has to pay the provider an appropriate fee which equals the the ratio of the services already rendered in relation to the total services intially intended for the contract, up to the point when the customer informed the provider about the enactment of his right of revocation regarding the contract. This is true in particular for yearly costs of ordering Internet domains. The reason for this is that these Internet domains are ordered individually according to the customer’s wish from the responsible registry and such orders have to be paid by the provider for one year in advance. This is why advances rendered by the customer will be withheld, in general. Due to the installation and start of operation of the hosting services ordered by the customer (setup and configuration of the web space or server, the domain or the colocation space as well as the Internet uplink required, setup of upgrades, etc.), which the provider is contractually obligated to perform, the provider explicitly reserves the right to demand appropriate compensation for lost value if the costs for the services rendered by the provider in relation to the total services intended for the contract are not covered by advances made by the customer.
(6) Should the provider be commissioned by the customer to provide services that are over and above the duties and responsibilities detailed in these General Terms and Conditions and in the service description (e.g. software-configuration, correction of errors or problems etc., that were not caused by the provider) the provider shall be entitled to demand adequate remuneration. In this case, a standard payment of € 25.00 per 15 minute unit of work shall be agreed. The provider may vary from this payment for the benefit of the customer as he sees fit.
(7) The responsibility for backups of his data lies with the customer, not the provider.
(8) The provider shall be entitled to to increase fees up to once per quarter. Such an increase requires the agreement of the customer. The agreement of the customer shall be given if he does not dissent within 4 weeks after receipt of the message informing him about the change. The provider is obliged to inform the customer about the repercussions of not dissenting within 4 weeks. As long as the main obligation, i.e. the obligation of payment of the basic usage-independent monthly remuneration, is not concerned, the provider determins the remuneration according to equitable discretion.
(9) In case the value-added tax is increased, the provider shall be entitled to adjust the remuneration for goods and services, which are adduced or delivered within a continuing obligation, accordingly, starting at the point of time the value-added tax-change comes into effect.
(10) It is agreed that payments made by the customer will not be refunded regardless of their original purpose – except in the case of an effective revocation, but then by inclusion of § 1(5). In case the customer made a payment higher than the amount of fees being required until the end of the contract and the fees for ordered services until then, it is agreed that the balance will not forfeit. Instead of a refund, the balance will be used for the provision of other / new services which the customer can order from the provider at any time.
2 Third party rights
(1) The customer expressly assures that the provision and publication of web page content created either by himself and/or web pages created for him by the provider based on information provided by the customer neither infringes Bangladeshi law nor any other law applicable in the customer’s country of residence, in particular copyright, data protection and competition law. The provider reserves the right to remove any pages from storage on his server that appear to be of dubious content. The provider shall immediately inform the supplier about any intended deletion of pages. The same shall apply if the provider is requested by third parties to change or delete contents of web pages because they allegedly violate third party rights.
(2) The provider shall be entitled to delete any such web pages from hard disk storage on his web server if such pages are likely to infringe third party rights. He shall also be entitled to prevent access by third parties by taking any appropriate action. The provider undertakes to notify the customer immediately about any such measure. Should the customer be able to provide proof that there are no concerns regarding infringement of third party rights the provider shall make the web pages concerned available again to third parties. The customer hereby agrees to hold the provider harmless from any claims by third parties resulting from the content of materials on the customer’s website(s).
(3) The clauses 1 and 2 are also applicable for all other products offered by the provider which are suitable for publishing data, such as VPS or colocated servers.
(1) Should domain registration or domain hosting form part of the services offered to the customer, the provider shall act only in the capacity of mediator between the customer, DENIC, InterNIC or other domain registration authority. Agreements with such organisations have the sole purpose of governing the customer’s rights and obligations.
(2) The provider has no influence on the delegation of domain names. He therefore cannot warrant that the registered domain names are not subject to claims by third parties or that they are unique or permanent. This also applies to sub-domains allocated within the provider’s domain.
(3) If the customer should be requested by a third party to surrender a domain because it may infringe third party rights, he shall inform the provider immediately. In such cases the provider shall be entitled to surrender the Internet domain on behalf of the customer. The customer hereby agrees to hold the provider harmless from any claims by third parties resulting from disputes regarding inadmissible use of domain names.
(4) The customer hereby warrants to the provider that the address information (consisting of at least his name, address, telephone number and e-mail address) provided during registration or setting up a new account is correct and complete. Should this information change then the provider must be notified immediately in writing (letter, e-mail, fax). This and under certain conditions further information, will also be used for domains ordered by the customer from the provider.
4 E-mail and newsgroups
(1) If the provision of e-mail addresses or e-mail services forms part of the services offered by the provider, the limitations set out in § 3 shall apply analogously to e-mail addresses provided for the customer. The provider reserves the right to delete the customers e-mail messages if they are not retrieved from the mail server within 4 weeks of receipt.
(2) If provision of access to public discussion forums (newsgroups) forms part of the services offered by the provider the time period over which public news is stored shall depend upon operational considerations of the provider.
(3) The provider shall not be responsible for the e-mail addresses he provides; their use and management is outside the control of the provider. In the case of misuse, the provider shall be entitled to suspend all or individual e-mail addresses. The customer shall be informed immediately about such measures.
5 Limitation regarding content
(1) For webspace-packages, the following applies: The customer must ensure that his web site is designed such that the server is not excessively loaded, e.g. caused by CGI/PHP scripts requiring considerable computing power or above average memory usage. Excessive loading shall be defined as such usage of the aforementioned resources such that the operation of a Tomattos server is noticeably impaired or even crashes. Tomattos reserves the right to prohibit customers or third parties from accessing pages that do not comply with the aforementioned requirements.
If no other agreement has been reached, the following content is forbidden:
– Unsolicited bulk messages (spam e-mails) or web pages that are connected in some way with spamming
– All other scripts that may impair and/or disrupt the function of the server
(2) For dedicated, colocated and virtual servers, the following applies: If no other agreement has been reached, the following content is forbidden:
– Unsolicited bulk messages (spam e-mails) or web pages that are connected in some way with spamming
– IRCd, the service for Internet Relay Chat
– All other scripts that may impair and/or disrupt the function of the server or other servers
(3) For game servers, the following applies: Clan Servers will be supplied by the provider solely with password protection, so that players can only connect to them and participate in ongoing games after typing in a password. This password set by the provider may never be removed by the customer. Moreover, the password may never be completely or in part nor in any other way which will make it guessable or restorable be published in the server name or elsewhere. The password is to be kept secret by the customer and may only be passed on within his clan or a comparable community – to each player individually. The customer has to make sure that players who receive the password strictly adhere to this paragraph.
(4) For game servers, the following applies: If the customer has ordered the upgrade “Tomattos branding” for his game server, the name of the server will be extended by an advertisement supplied by the provider (e.g. ‘by Tomattos.com’). This extension by the provider may never – also not in part – be removed by the customer.
(5) Should clause 1 to 4 be applicable, the provider reserves the right to immediately suspend the webspace package or server. This course of action will also be implemented should other sites stored on the server be affected by the customer’s site. The customer shall be informed about any such suspension.
(6) In case of such a suspension, solely the customer, not the provider shall be accountable for infringements of contracts. In any case the provider’s claim of payment of remuneration remains, for the entire contract period.
The following is only applicable for server offers (like dedicated, colocated and virtual servers), except for game servers:
(1) The provider concedes complete and sole administration-rights on rented/colocated servers to the customer. Only the customer knows the individual administration-password of the server, not the provider. The provider is therefore unable to administrate the rented/colocated server. Hence the customer is solely and entirely responsible for administration and security of his servers, at his own expenses and risks. It is his duty to install necessary security-software and to inform himself constantly regarding security issues as well as to fix such by himself. Installation of maintenance software or other software does not absolve the customer from this duty.
(2) Should customers receive fixed IP-addresses, the provider reserves the right to change these when technical needs arise and to inform the customer about his new IP-address.
(3) If necessary and reasonable, the customer will assist at simple configuration changes, such as entering the login-data anew, or simple changes of his systems.
(4) It is the customer’s duty to configure his programs in such a way that they are restarted automatically when the hardware or the operating system is restarted.
(5) For game servers, the following applies: The provider concedes complete and sole administration-rights on the rented game server to the customer, within the limits of the functional range of the web interface supplied by the provider. The customer, however, does not receive complete root or SSH access for the used game host server. The startup parameters of the game server cannot be changed by the customer.
7 Guarantees of performance
(1) The provider guarantees an annual mean 95%-availability of the physical connection of his webspace packages, dedicated, colocated, virtual servers and game servers. Exempted hereof are periods of time in which the servers are not reachable over the internet due to technical or other problems which do not lie within the provider’s sphere of influence (force majeure, faults of third parties or of the customer).
(2) The servers located in the datacenters of the provider are connected to the internet over a complex network infrastructure. Data traffic is routed over different active and passive network components (routers, switches, and other devices), which have a certain maximum data throughput. Therefore data throughput capacities can be limited for particular servers at particular points and not be equal to the maximum allowed data throughput of the respective switch-port. Unless otherwise agreed, the provider cannot give a guarantee for the amount of actually available bandwidth for individual servers, but makes available bandwidth depending on the technical capability of the datacenter, taking into account obligations towards other customers.
(3) Customers can use the servers of the provider or own colocated servers for an manageable amount of different applications and use various software programms to this purpose, at their own discretion. Because of this, millions of different configurations are possible. The sheer diversity of these option does not permit the provider to give guarantees for the utilizability and compatibility of servers for a certain purpose.
Except for the specifications made in the description of the offer, the provider cannot give guarantees for the actual resources available for individual webspace packages, VPS and game servers. Rather, the provider makes available resouces depending on technical possibilities, taking into account obligations towards other customers.
8 Data protection
(1) The customer agrees that his personal data (basic data) and other information concerning use of the service (e.g. time, number and duration of connections, access passwords, uploads and downloads) may be stored by the provider during the period of the agreement should this be necessary for fulfilling the purpose of the contract, particularly for invoicing. The customer agrees to the storage of data. The provider may also processes and utilise such personal data that has been collected for the purpose of advising his customers, for advertising and market research for his own purposes and for structuring his telecommunication services in accordance with requirements. The customer shall be entitled to object to such use of his personal data.
(2) Upon request by the customer the provider undertakes at any time and at no charge to provide full access to stored personal data pertaining to the customer. The provider shall not disclose this data or any of the customer’s personal messages to third parties unless he is legally required to do so, in particular to government bodies or should this be required by internationally recognised technical standards.
(3) The provider expressly points out that the protection of data privacy for data transmission across open networks such as the Internet cannot be fully guaranteed with current technology. The customer acknowledges and accepts that the provider is entitled at any time to view the websites stored on his server and, under certain conditions, any of the customer’s data stored there if technical requirements so dictate. Other unauthorised Internet users may also be technically able to interfere with network security and control the flow of messages.
The customer warrants that all information he has given to Tomattos is correct and complete. Upon request the customer agrees to immediately inform Tomattos of any changes and to reconfirm that the data is currently correct within 7 days of receiving any such request.
This applies in particular to:
– Name and postal address of the customer,
– Name, postal address, e-mail address as well as the telephone and fax number of the technician responsible for the domain,
– Name, postal address, e-mail address as well as the telephone and fax number of the administrator of the domain
– and if the customer provides his own name server, the IP addresses of the primary and secondary name servers including the names of these servers.
(4) The clauses in § 8 do not affect § 16(4).
9 Limitation of liability
The provider shall be liable for any damages caused by him or factors, servants and assignees through gross negligence or intent. In cases of violation of essential contractual obligations and slight negligence which lead to financial losses liability shall be limited to a liability insurance procured by the provider (with regard to the amount of liability) and to predictable, imminent losses (with regard to the type of liability).The limitations of liability stated above do not concern claims of the customer regarding product liability and especially do not apply for damage caused to the customer’s health (or loss of life) attributable to the provider. Otherwise, liability is excluded.
The customer indemnifies the provider against all possible third party claims arising from any illegal action by the customer or from errors in the information provided by the latter. This applies in particular to copyright, data protection and competition law violations. Tomattos shall not be obliged to check the customer’s websites for possible legal violations.
11 Applicable law, place of jurisdiction
(1) Applicable law is that of the The Peoples Republic of Bangladesh.
(2) Any dispute resulting from this agreement shall be referred solely to a court of competent jurisdiction at the place of business of the provider.
(1) Provided that, in the following or preceding section(s), the customer has selected the payment option, “direct debit” or “credit card”, he herewith agrees that payments for the services of the provider shall be debited from his bank account or credit card. Such payments may include:
a) Setup charge
b) Monthly package/server/housing/bandwidth charge
c) Domain costs
d) Costs for additional traffic
e) Other costs that may arise for using the provider’s services
(2) In the case of incorrect direct debits/credit card debits (possibly caused by an overdrawn account, incorrect account data etc.) additional bank charges and increased administrative costs will arise for the provider. The provider will therefore charge a flat fee of € 15.00 for an incorrect direct debit and a flat fee of € 30.00 for an incorrect credit card debit.
(3) In the case of a failed debit collection, the provider may immediately claim default interest fixed by law. Additionally, the provider shall be entitled to discontinue the service contract until payment is made. The provider shall be entitled to suspend the contract and reallocate the rented capacities. Data loss cannot be ruled out in this case. A one-time-fee of € 30.00 is computed by the provider when re-activating the service for the customer.
In the case of a non-payment until the second date mentioned in the demand note an additional fee of € 58.00 is computed for mandating a lawyer.
(4) The provisions set out in paragraph 3 shall also apply in the case of non-payment if the customer has selected the payment option “bank transfer”, “PayPal”, “Skrill”, “Western Union” or a similar, comparable payment option. Delay of payment is the case when, at the first of a given month, the services of the provider have not been prepaid for the entire month.
13 Licensing terms for Microsoft products
Provided that in the following or preceding section the customer has selected a Microsoft software product (e.g. Windows Server, SQL Server etc.) for installation on his server, he must comply with the current provisions of the “Microsoft Service Provider Use Rights” which apply within the context of the Microsoft “Service Provider License Agreement” to Tomattos (hereinafter referred to as provider) if the customer is able to influence the use of the software or could infringe the provisions through use of the software. Theser provisions may be viewed at the following address at any time:
The customer thus agrees to comply with the corresponding provisions and is responsible for observing them correctly.
These provisions may result in only having restricted or even not having the possibility to use otherwise purchased licenses of the customer with the servers of the provider. The provider will supply a license for all customer orders of Microsoft software products considering the Microsoft Service Provider License Agreement. This license allows the monthly use of the Microsoft software product on the server and limits its utilization permission with regard to some aspects. The customer particularly must not use Microsoft products which require additional or other licenses according to SPUR. The customer is obligated to comply with all these provisions on his own and is liable for violations against this usage policy to the provider and Microsoft.
14 Special terms for colocation-/housing-/bandwidth-offers
The following applies for colocation-/housing-/bandwidth-offers:
(1) The provider is obliged to enable a connection to the internet and a storing position for the server according to the respective product description.
(2) The provider does not provide any guarantee for hardware damage which can result, for example, from transport to the datacenter, back to the customer or during going concern.
(3) The provider grants the customer access to his server-system during the office-times published on the homepage of the provider in order to allow the customer to work on the server-system. This requires, however, a written request which has to be addressed to the support-department of the provider, at least 48 hours in advance. To access the server-system, the ID Card of the customer or a statement of authority signed by the customer is necessary. During the customer’s presence in the datacenter, the provider has to fulfill various duties of supervision and control. Since this requires the attendance of the provider’s personnel, costs of € 50.00 per started hour incur. With prior agreement, the provider can abstain from this at his sole discretion. If the appointment is not kept, the customer has to cancel it at least 2 hours in advance (if during office hours) or at least 12 hours in advance (if outside of office hours). If there is no cancellation within the stated time periods and the appointment is not kept, the customer will be billed for € 30.00.
(4) Reboots are provided for free by the provider at the customer’s request unless stated otherwise in the product description and unless the amount of reboots per month does not create disproportional effort.
(5) Other technical support services are not included with the offer. If the help of a technician is required, costs of € 25.00 per started 15 minutes incur.
(6) The provider guarantees the following specifications regarding the availability of peripherals (air conditioning, electricity):
– The data floor, on which the servers are located, is equipped with sufficient air conditioning and electricity
– The provider is responsible for correct and adequate maintenance of technical devices of the datafloor in order to guarantee going concern
– In case of an outage / non-availability of electricity, UPS or air conditioning, the provider will immediately, at the latest during the next working day, undertake all measures necessary to restore going concern.
(7) Claims resulting from operational outage of peripherals (air conditioning, electricity) can only be asserted in case of violation of the guarantees mentioned in clause 6 up to the monthly amount for the colocated server and only if the outage has been lasting for over 72 hours (continuously, without breaks). If financial losses are claimed, these have to be substantiated and will be redeemed after verification up to an amout of € 500.00.
In case of an bandwidth-outage such claims are only valid if the guarantees regarding bandwidth made in § 7 clause 1 are undercut.
(8) The provider does not assume liability for damage or loss of data.
(9) The customer is responsible that the colocated equipment is flawless so that no negative impact for other devices can emanate from it.
(10) The customer is liable for possible damages emanating from the server and is responsible for an adequate insurance.
(11) If the provider informs the customer immediately, at least one month in advance, that he has decided to move to a different location, each party has a special cancellation right and can cancel the performances specified in this contract that are provided in the location which will change using written form. The cancellation will come into effect on the day the location is about to change. Given that the provider has informed the customer accordingly and neither party has made use of their special cancellation right, the contract continues unchanged at the new location. This clause does not come into effect if the reason for the change of the location is an instant dismissal of the rental agreement between the provider and his lessor. In this case, only clause 12 applies.
(12) The customer is aware of the fact that the provider himself has to rent the datafloor. If this contract concerns the housing and bandwidth provided in the datacenter, the contract concerning this performance ends automatically at the point of time when the rental agreement between the provider and his lessor ends by means of an instant dismissal and the provider has been unable to find a suitable new location. The provider will inform the customer immediately. Other agreements remain untouched.
(13) If the server of the customer needs more electricity or space than specified in the rented offer, additional housing-modules need to be rented – when only noticed later, this change will be retroactive. The number and price of the required additional modules is specified on the homepage of the provider.
(14) The provider reserves the right to adjust the price for housing accordingly to an increase of rental- additional and electricity-expenses, under the following conditions:
– The customer is informed immediately about such a change.
– The increase takes place solely in order to pass the costs mentioned above and without any intention of enrichment
– The change takes place at the same point of time the increase takes place
– The customer has a special cancellation right for bandwidth and housing in the affected datacenter: He can cancel affected subscriptions within three months upon receipt of the message informing him about the change. This special cancellation right is valid during the mentioned three months-period. If it is not used, the contract continues under the adjusted conditions.
(15) The customer agrees to the fact that the provider opens the case of the colocated server and adds a ‘Web Resetter’ to the reset-pin of the mainboard. Using this device, the provider is able to restart the server of the customer at any time if the customer requests it. Furthermore, the customer is able to reboot the server himself using the aforementioned device if he orders the necessary upgrade. In case the server is returned to the customer, the provider will remove the ‘Web Resetter’ again.
(16) The customer is aware of and agrees to the fact that the provider publishes (Live-)video material and static pictures of his datacenter and that these videos/images might picture equipment or servers of the customer.
(17) If the customer is in delay of payment for any performance between him and the provider, the provider has the right to keep the server and/or equipment of the customer in his posession until payment is made in full.
(18) The customer grants the provider a lien on colocated servers and other equipment to back claims resulting from the contract between the provider and the customer. The lien only expires once all debt resulting from the contract between the provider and the customer has been paid and the contract has ended. Starting with the inception of treaty, the customer has to inform the provider immediately should the server not be or cease to be his property, be pledged or assigned. If the customer is entitled to other rights to the colocated server, especially expectant right, he assigns these to the provider in order to back debts resulting from the contract between the provider and the customer.
(19) The lien and the contractual lien can also be asserted for claims resulting from former services or other claims.
(20) If the provider excercises his lien, it shall suffice to send a written notice to the last known address of the customer. No further notice is required.
(21) Legal liens are unaffected by these terms.
(22) If the customer does not retrieve his server / other equipment within four weeks after the contract has ended, the provider will stock the items for a fee of € 10 per item and per month.
15 Alteration of contract
The provider has the right to change the subject terms of this contract as long as the changes are reasonable, taking into account the interests of the provider. The agreement of the customer shall be given if he does not dissent within 4 weeks after receipt of the message informing him about the change. The provider is obliged to inform the customer about the repercussions of not dissenting within 4 weeks.n.
16 Final provisions
(1) Amendments or additions to this contract are only valid if they have been agreed to in writing. This also applies to any amendment of this clause relating to written notification.
(2) All communications by the provider may be sent to the customer by electronic means. This also applies to invoices sent for services provided under the agreement.
(3) The customer may only set off claims against the provider if such claims are established as undisputed or legally binding.
(4) The provider is authorised to list the customer as a reference-customer without being obliged to pay a refund.
(5) All prices quoted are not binding unless they are confirmed contractually. Errors and omissions in our prices excepted.
(6) If any provision of this agreement is held to be invalid or becomes invalid or if there are omissions in the agreement that require rectification, the remaining provisions of the agreement shall remain in full force and effect. The invalid provision or omission shall be replaced by a provision which comes closest to the intention of both parties as would have been agreed by the parties had they knowledge of such issues in advance.