General Terms and Conditions
This is a convenience translation. The legally binding version of these terms is the German original.
GENERAL TERMS AND CONDITIONS (GTC)
valid from 15.10.2014 of C1.IT Solutions GmbH, referred to in short as C1.IT
1. Scope of contract and validity
All orders and agreements are legally binding only if they are made in writing and, in the case of companies, signed in accordance with the company's signing authority, and they are binding only to the extent specified in the order confirmation. The written form may also be in digital form (email, fax). Purchasing conditions or terms and conditions of the client or contractual partner are hereby excluded for the present legal transaction and for the entire business relationship, even if the validity of such conditions is stated as an express condition in the contractual partner's terms and conditions. Terms and conditions of the contractual partner apply only if they are expressly confirmed by C1.IT in writing or by email. Offers are generally non-binding and subject to change unless otherwise agreed. These GTC are addressed to companies as defined in §1 KSchG (Austrian Consumer Protection Act) without restrictions. Should they exceptionally form the basis of legal transactions with consumers within the meaning of §1 para. 1 no. 2 KSchG, they apply only insofar as they do not conflict with the mandatory provisions of the first main part of that Act.
1.1 These general terms of business and delivery (GTC) apply to all services and works as well as deliveries that C1.IT Solutions GmbH provides to the customer. They also apply to all future transactions, even if no express reference is made to them.
1.2 Amendments may be made by C1.IT Solutions GmbH and are also effective for existing contractual relationships. The current version is available on the C1.IT website (http://c1-it.com/agb) or is sent to the customer on request. Charges for recurring services such as internet access lines, domain registrations etc. are index-linked on the basis of the Austrian consumer price index or a benchmark figure replacing it, and may be adjusted.
1.3 In supplement to these GTC, the general conditions for services in information processing by data centres, for information and data processing and management consultancy, issued by the Professional Association of Management Consultancy and Data Processing of the Austrian Federal Economic Chamber in their current version, apply.
1.4 All ancillary agreements, communications and declarations concerning this contractual relationship are valid towards companies only if made in writing or by email, whereby this formal requirement may itself only be waived in written form. Digital signatures of C1.IT Solutions GmbH are recognised as legally valid.
2. Service, contract duration, termination and inspection
2.1. The subject of an order may be: development of organisational concepts, global and detailed analyses, creation of standard and individual software programs, acquisition of usage rights for software products, acquisition of work-use licences, assistance with commissioning and migration support, telephone consultancy and support, network/program/software maintenance and IT outsourcing, provision of internet lines, telephony services, rental of server space, creation of internet sites (homepages) and portals, supply of hardware and software, other services in the area of IT and telecommunications. The scope of the contractual services results from the respective service description and the [any] related [in writing, in the case of companies] agreements of the contracting parties.
2.2. The development of individual organisational concepts and programs is carried out according to the nature and scope of the binding information, documents and resources provided in full by the client. This also includes practical text data as well as testing facilities in sufficient extent, which the client makes available in good time, during normal working hours and at its own expense. If the client already works in live operation on the equipment provided for testing, responsibility for securing the live data lies with the client.
2.3. The basis for the creation of individual programs is the written service description, which the contractor prepares against cost calculation on the basis of the documents and information made available to it, or which the client provides. This service description must be checked by the client for accuracy and completeness and provided with the client's approval note. Subsequent change requests may lead to separate scheduling and price agreements.
2.4. Individually created software or program adaptations require, for the respective part concerned, a program acceptance at the latest within 4 weeks of delivery by the client. This is confirmed in a protocol by the client. (Check for accuracy and completeness on the basis of the service description accepted by the contractor, using the test data provided as specified under point 2.2.) If the client lets the period of four weeks pass without program acceptance, the software is deemed to be accepted. Upon use of the software in live operation by the client, the software is in any case deemed to be accepted. Any defects that occur, that is, deviations from the service description agreed in writing, must be reported by the client to the contractor in sufficiently documented form, and the contractor will endeavour to remedy the defects as quickly as possible. If essential defects reported in writing exist, meaning that live operation cannot be started or continued, a renewed acceptance is required after the defects have been remedied.
2.5. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the contractor is obliged to notify the client of this immediately. If the client does not amend the service description accordingly or does not create the conditions for execution to become possible, the contractor may refuse execution. If the impossibility of execution is the consequence of an omission by the client or of a subsequent change to the service description by the client, the contractor is entitled to withdraw from the order. The costs and expenses incurred for the contractor's activity up to that point, as well as any dismantling costs, must be reimbursed by the client.
2.6. Dispatch of program carriers, documentation and service descriptions is carried out at the cost and risk of the client. Any training and explanations requested by the client beyond this are invoiced separately. Insurance is taken out only at the client's request.
2.7. Unless otherwise provided below or in an individual contract, all service contracts are concluded for an indefinite duration. The contractual relationship may be terminated by C1.IT Solutions GmbH and by the customer subject to a 3-month notice period to the last day of any month. For internet access lines, termination applies to the end of each quarter, 3 months in advance. The minimum contract duration for internet access lines is 12 months and is automatically extended by a further year if the contract is not terminated in writing at the latest three months before the end of the contract, or other agreements have been made. The decisive factor is the date of receipt by C1.IT Solutions GmbH. Termination must be made in writing, by email, fax or letter.
2.8. C1.IT Solutions GmbH is entitled to suspend the provision of services for a customer immediately and without notice:
2.8.1. in the case of gross breaches of contract, in particular if the customer repeatedly breaches contractual obligations that make it impossible for the provider to continue the contract and which, under applicable civil law, entitle it to dissolve the contract for good cause; culpably infringes the copyrights, industrial property rights or naming rights of third parties; negligently or intentionally violates data protection provisions or culpably breaches laws that protect the data of third parties; if the customer, in the case of internet lines, disturbs or damages other network participants or C1.IT, e.g. carries out unsolicited advertising and spamming [aggressive direct mailing], or misuses, or allows third parties to misuse, the use of the service for the transmission of threats, pornographic content, content glorifying violence, content contravening the free democratic basic order, obscenities, harassment, or for damaging other participants etc.; if the customer damages or misuses the hardware or software provided, or, in the case of provision of internet lines, despite request, does not immediately remove disruptive or non-approved equipment from the network; or if there is reasonable suspicion that activities emanate from the customer's connection network that are either security- or operationally-endangering for C1.IT Solutions GmbH or other participants.
2.8.2. where technical faults exist that emanate from the customer, until they are remedied.
2.9. C1.IT Solutions GmbH is entitled to terminate the contract with immediate effect if: circumstances as per paragraph 2.8. exist; the customer is in default of its payment obligation even 14 days after a reminder has been issued in writing or by electronic means and after notice of service suspension.
2.10. In the event of a suspension under paragraph 2.8., C1.IT Solutions GmbH will resume the provision of services as soon as the grounds for the cessation no longer apply and the customer has reimbursed the costs of the blocking and the reactivation. The suspension of the provision of services under paragraph 2.8. does not release the customer from its obligation to pay the charges.
2.11. In the event of withdrawal, services or partial services already rendered must be settled and paid in accordance with the contract, without prejudice to the claims for damages of C1.IT Solutions GmbH. This also applies insofar as the delivery or service has not yet been accepted by the buyer, as well as to preparatory acts performed by C1.IT Solutions GmbH.
3. Prices, taxes and charges
3.1. All prices are understood in euros excluding value added tax. They apply only to the present order. The prices stated are understood ex the contractor's place of business or office. The costs of program carriers (e.g. CD/DVD, USB sticks, streamer tapes, magnetic tape cassettes etc.) as well as any contract charges are invoiced separately. For determining the services used in the area of lines and server space, the measurements of C1.IT Solutions GmbH or its contractual partners apply. Details of the respective billing models are to be taken from the respective contracts or price lists.
3.2. For all services (organisational consultancy, programming, training, migration support, telephone consultancy etc.) the work effort is charged at the rates valid on the day the service is rendered. Deviations from a time expenditure underlying the contract price, which are not the responsibility of the contractor, are charged according to actual occurrence.
3.3. The costs for travel, daily and overnight allowances are invoiced to the client separately according to the respective valid rates. Travel times count as working time.
3.4. For telephony services, the price lists notified to RTR GmbH apply. The payment interval pursuant to §25 para. 4 no. 6 TKG 2003 (Austrian Telecommunications Act) is one month.
4. Delivery date
4.1. The contractor endeavours to meet the agreed dates of performance (completion) as precisely as possible.
4.2. The targeted performance dates can only be met if the client makes available all necessary work and documents in full by the dates specified by the contractor, in particular the service description accepted by the client as per point 2.3., and fulfils its obligation to cooperate to the necessary extent. Delivery delays and cost increases arising from incorrect, incomplete or subsequently changed details and information or documents provided are not the responsibility of the contractor and cannot lead to default on the part of the contractor. Any additional costs resulting from this are borne by the client.
4.3. For orders comprising several units or programs, the contractor is entitled to make partial deliveries or issue partial invoices.
4.4 If the customer, despite the setting of a grace period, does not allow an ordered system/product to be installed, default of acceptance exists. C1.IT Solutions GmbH is entitled, from the time the customer is notified of installation readiness, to demand from the customer the agreed charge and reimbursement of the expenses for services already rendered.
5. Payment
5.1. The invoices issued by the contractor, including value added tax, are payable at the latest 7 days after receipt of the invoice, without any deduction and free of charges. For partial invoices, the payment conditions specified for the overall order apply analogously.
5.2. For orders comprising several units (e.g. programs and/or training, realisations in partial steps), the contractor is entitled to issue an invoice after delivery of each individual unit or service.
5.3. Compliance with the agreed payment dates constitutes an essential condition for the performance of the delivery or fulfilment of the contract by the contractor. Failure to comply with the agreed payments entitles the contractor to suspend ongoing work and to withdraw from the contract. All costs associated with this, as well as lost profit, are to be borne by the client. In the event of default of payment, default interest is charged at the customary banking rate. If two instalments are not met in the case of partial payments, or in the case of open-ended contracts and regular payments and settlements, the contractor is entitled to invoke loss of term and to make submitted invoices due, or, in the event of non-payment, to suspend the services immediately in accordance with these present GTC.
5.4. The client is not entitled to withhold or offset payments on account of an incomplete overall delivery, guarantee or warranty claims, or complaints.
5.5. If the execution of the order is prevented after signing of the contract by the client (e.g. due to termination), the contractor is nonetheless entitled to the agreed fee, in particular if, despite the setting of a grace period, the customer does not allow an ordered system to be installed (in which case default of acceptance exists).
5.6. If the execution of the order does not take place due to circumstances that constitute good cause on the part of the contractor, the contractor is entitled only to the part of the fee corresponding to its services rendered to date. This applies in particular if, despite termination, the contractor's services rendered to date are usable for the client.
5.7. The contractor may make the completion of its service dependent on the full satisfaction of its fee claims. Objection to the contractor's work does not entitle the client to withhold the remuneration due to the contractor, except in the case of obvious defects.
5.8. For telephony services, the following applies pursuant to §122 TKG 2003: Without prejudice to the jurisdiction of the ordinary courts, customers may submit disputes or complaints (concerning the quality of the service, payment disputes that have not been resolved satisfactorily, or an alleged infringement of the TKG 2003) to the regulatory authority. The operator is obliged in this regard to cooperate in such a procedure and to provide all information required to assess the situation as well as to submit the necessary documents. The regulatory authority is to bring about an amicable solution or to inform the parties of its view on the case brought before it. The course of the dispute settlement procedure is set out in the procedural guidelines of the regulatory authority (available at http://www.rtr.at).
5.9. For telephony services, the following applies pursuant to §71 para. 4 TKG 2003: If a billing error is established that could have had a detrimental effect on the customer and the correct charge cannot be determined, a flat-rate compensation is to be set based on the average extent of use of this communications service by the subscriber, insofar as C1.IT can credibly demonstrate consumption at least to this extent.
5.10 Objections to the claims invoiced must be raised by the customer within 3 months of the invoice date, otherwise the claim is deemed to be acknowledged.
6. Copyright and use
6.1. All copyrights in the agreed services (programs, documentation etc.) belong to the contractor or its licensors. The client receives exclusively the right, after payment of the agreed charge, to use the software exclusively for its own purposes, only for the hardware specified in the contract and to the extent of the acquired number of licences for simultaneous use at several workstations. Only a work-use licence is acquired through the present contract. Distribution by the client is excluded in accordance with the Copyright Act. Through the client's involvement in the production of the software, no rights are acquired beyond the use specified in the present contract. Any infringement of the contractor's copyrights gives rise to claims for damages, whereby in such a case full satisfaction is to be provided.
6.2. The making of copies for archiving and data backup purposes is permitted to the client on condition that there is no express prohibition by the licensor or third parties contained in the software, and that all copyright and ownership notices are transferred unchanged into these copies.
6.3. Should the disclosure of the interfaces be necessary for establishing the interoperability of the present software, this is to be commissioned from the contractor by the client against cost reimbursement. If the contractor does not comply with this demand and a decompilation takes place in accordance with the Copyright Act, the results are to be used exclusively for establishing interoperability. Misuse results in damages.
6.4. When using licensed software of third parties, the customer is obliged to comply with the licence conditions before using such software. The customer must observe the terms of use specified by the author for such software and any licence regulations and must refrain from any passing on of the software to third parties. In any case, the customer holds C1.IT Solutions GmbH harmless and indemnified against claims due to infringement of the above obligations.
7. Right of withdrawal
7.1. In the event that an agreed delivery time is exceeded due to the sole fault or unlawful conduct of the contractor, the client is entitled, by means of registered letter, to withdraw from the order concerned if the agreed service in essential parts is not rendered even within the reasonable grace period and the client is not at fault in this regard.
7.2. Force majeure, labour disputes, natural disasters and transport blockages as well as other circumstances beyond the contractor's control release the contractor from the delivery obligation or permit it to reset the agreed delivery time.
7.3. Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, it has the right to charge, in addition to the services rendered and costs incurred, a cancellation fee in the amount of 30% of the not yet invoiced order value of the overall project.
8. Warranty, maintenance, changes
8.1. Complaints about defects are only valid if they concern reproducible defects and if they are made in documented written form within 4 weeks of delivery of the agreed service or, in the case of individual software, after program acceptance pursuant to point 2.4. In the case of a justified complaint about defects, the defects are remedied within a reasonable period, whereby the client enables the contractor to take all measures necessary for investigation and remedy of the defects.
8.2. Corrections and additions that prove necessary up to the handover of the agreed service due to organisational and programming defects for which the contractor is responsible are carried out free of charge by the contractor.
8.3. Costs for assistance, misdiagnosis and remedy of errors and faults for which the client is responsible, as well as other corrections, changes and additions, are carried out by the contractor against charge. This also applies to the remedy of defects if program changes, additions or other interventions have been carried out by the contractor itself or by a third party.
8.4. Furthermore, the contractor accepts no warranty for errors, faults or damage attributable to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organisational resources and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions), or to transport damage. In the area of data lines, the contractor cannot guarantee 100% performance, since system faults and outages are technically possible and often lie outside the contractor's sphere (external lines (carried out by a telecommunications company), system configuration and other reasons). The contractor acts only as an intermediary between the telecommunications company and the customer and, through its contact persons, supports customers with line problems, insofar as a valid line contract with the customer exists.
8.5. For programs that are subsequently modified by the client's own programmers or by third parties, any warranty by the contractor lapses if a defect has arisen as a result.
8.6. In accordance with the statutory provisions under ABGB (Austrian Civil Code) §922ff, C1.IT Solutions GmbH undertakes to provide a warranty to the buyer on all products distributed by C1.IT Solutions GmbH. After 6 months from purchase, the burden of proof is reversed, i.e. the buyer must prove that the defect already existed at the time of handover! Recourse under §933b is expressly excluded. Extract from the ABGB:
Warranty §922
(1) Whoever transfers a thing to another against payment provides a warranty that it conforms to the contract. The transferor is therefore liable that the thing has the stipulated or usually presupposed properties, that it corresponds to its description, a sample or a specimen, and that it can be used in accordance with the nature of the transaction or the agreement made.
(2) Whether the thing conforms to the contract is also to be assessed according to what the transferee can expect on the basis of the public statements made about it by the transferor or the manufacturer, above all in advertising and in the information accompanying the thing; this also applies to public statements of a person who has imported the thing into the European Economic Area or who designates itself as the manufacturer by affixing its name, its trademark or another distinguishing mark to the thing. However, such public statements do not bind the transferor if it neither knew nor could have known of them, if they had been corrected at the conclusion of the contract, or if they could not have influenced the conclusion of the contract.
Presumption of defectiveness §924
The transferor provides a warranty for defects that are present at handover. This is presumed, until proof to the contrary, if the defect comes to light within six months of handover. The presumption does not take effect if it is incompatible with the nature of the thing or of the defect.
Rights under the warranty §932
(1) On account of a defect, the transferee may demand improvement (repair or supply of what is missing), exchange of the thing, an appropriate reduction of the charge (price reduction) or rescission of the contract.
(2) Initially, the transferee may only demand improvement or exchange of the thing, unless improvement or exchange is impossible or would involve, for the transferor, a disproportionately high expense compared with the other remedy. Whether this is the case depends also on the value of the defect-free thing, the severity of the defect and the inconvenience associated for the transferor with the other remedy.
(3) The improvement or exchange is to be effected within a reasonable period and with the least possible inconvenience for the transferee, whereby the nature of the thing and the purpose pursued with it are to be taken into account.
(4) If both improvement and exchange are impossible or involve a disproportionately high expense for the transferor, the transferee has the right to a price reduction or, provided it is not a minor defect, the right to rescission. The same applies if the transferor refuses improvement or exchange or does not carry it out within a reasonable period, if these remedies would involve considerable inconvenience for the transferee, or if they are unreasonable for the transferee for valid reasons lying in the person of the transferor.
Limitation §933
(1) The right to warranty must, where it concerns immovable things, be asserted in court within three years; where it concerns movable things, within two years. The period begins on the day of delivery of the thing, but in the case of legal defects only on the day the defect becomes known to the transferee. The parties may agree on a shortening or postponement of this period.
(3) In any case, the transferee retains the right to assert the matter by way of defence if it notifies the transferor of the defect within the period.
Damages §933b
(1) If the transferor has caused the defect, the transferee may also demand damages.
(2) On account of the defect, the transferee, when claiming damages, may also initially only demand improvement or exchange. However, it may demand monetary compensation if both improvement and exchange are impossible or would involve a disproportionately high expense for the transferor. The same applies if the transferor refuses improvement or exchange or does not carry it out within a reasonable period, if the remedies would involve considerable inconvenience for the transferee, or if they are unreasonable for the transferee for valid reasons lying in the person of the transferor. The warranty periods towards companies are set at six months. Insofar as the subject of the order is the change or addition to already existing programs, the warranty relates to the change or addition. The warranty for the original program is not thereby revived.
8.7. In all cases and from the time of acceptance, the recipient of the service must furnish the proof that a defect exists (exclusion of the reversal of the burden of proof).
8.8. C1.IT Solutions GmbH will carry out the services and backups taking into account the general state of the art. However, due to the nature of the internet, no availability guarantees or qualitative transmission guarantees can be given. C1.IT Solutions GmbH will notify the customer in good time of interruptions or significant restrictions insofar as these are necessary for maintenance, for carrying out operationally necessary work, for improving a network or service, or for avoiding faults. Such announced interruptions do not constitute a failure of a network or a service and are not counted towards any guaranteed availability times. C1.IT Solutions GmbH is not liable if it cannot fulfil its obligations under a contract due to circumstances for which it is not responsible.
8.9. C1.IT Solutions GmbH is not responsible if someone succeeds in unlawfully gaining access to the customer's data and continuing to use it, so that the assertion of damages of the customer or third parties against C1.IT Solutions GmbH arising from such a context is excluded by mutual agreement.
8.10. If the customer connects third-party products to the system with the consent of C1.IT Solutions GmbH, C1.IT Solutions GmbH accepts no warranty for flawless operation. The customer must ensure the maintenance of the third-party products. If they affect the function of the system, C1.IT Solutions GmbH is entitled to switch them off.
8.11. No warranty is accepted that the software provided works together with other programs or the client's hardware or meets all of the customer's requirements, unless this has been expressly conceded, and for software classified as "Public Domain", "Free", "Demo" or "Shareware";
8.12. Should, within the meaning of the above provision or for statutory reasons, a warranty obligation of C1.IT Solutions GmbH exist, C1.IT Solutions GmbH fulfils such an obligation remotely where possible, and the warranty obligation of C1.IT Solutions GmbH is limited to defects that are reproducible.
8.13. The customer will inspect the delivered hardware and software immediately after acceptance, if necessary with the involvement of experts. If any defects are not complained of in writing within 3 days of being detectable, all warranty or damage claims based on the defect lapse.
8.14. The liability of bodies, employees and vicarious agents of C1.IT Solutions GmbH for slight negligence (excluding personal injury) is excluded.
8.15. The liability is in total limited in amount, both to half the annual charge for a contract constituting a continuing obligation, or to the purchase price or work remuneration paid.
8.16. For the following damages, any compensation is excluded: loss of goodwill and business relationship; loss of data, unless data backup is expressly part of the agreed service; damages due to delay; production downtime and lost profit; financial losses, consequential damages and damages from claims of third parties; damages resulting from the lack of official authorisation or from the lack of private-law approvals or consents of third parties; damages resulting from the system combination chosen by the customer not meeting its requirements or not delivering the intended results; liability for the content of transmitted data as well as data accessible through the services of C1.IT; liability for damages arising from the customer keeping passwords inadequately secret, them being inadequate or being passed on to third parties (or also from choosing a correspondingly inadequate form of transmission).
8.17. In the case of delivery of goods, C1.IT Solutions GmbH may free itself from warranty-law claims for rescission of the contract or for an appropriate price reduction by exchanging a defective thing for a defect-free one within a reasonable period.
8.18 Faults in the telecommunications services for which C1.IT Solutions GmbH is responsible are remedied at the latest within two weeks. The customer must support C1.IT Solutions GmbH within the scope of its possibilities in locating the source of the fault and error and must grant C1.IT Solutions GmbH or third parties commissioned by it the necessary access at any time to enable the remedy of the fault. If C1.IT Solutions GmbH or third parties commissioned by it are called to remedy a fault and it is established that there is no fault in the provision of the contractually agreed services or that the fault is the customer's responsibility, the customer must reimburse C1.IT Solutions GmbH for every expense incurred by it as a result.
9. Manufacturer's guarantee
If an extended guarantee promise is specified by the manufacturer of a product, the defective product is forwarded to the manufacturer. However, during this period the defective parts are not exchanged in advance by C1.IT Solutions GmbH. Any transport costs are to be borne by the customer. C1.IT Solutions GmbH may refuse to handle the manufacturer's guarantee claim if the manufacturer offers direct repair handling. The manufacturer's guarantee cannot be claimed against C1.IT Solutions GmbH in court.
10. Transport damage
The risk passes to the customer upon handover of the goods to the carrier. Transport damage is neither a warranty nor a guarantee case, but an insurance matter. Transport damage must be reported immediately.
11. Liability
11.1. In carrying out the consultancy, the contractor acts according to the generally recognised principles of professional practice. It is liable for damages (excluding personal injury) only in the event that intent or gross negligence can be proven against it, and then within the framework of the statutory provisions. This also applies to the breach of obligations by colleagues called in.
11.2. The claim for damages may only be asserted in court within six months after the person(s) entitled to the claim have become aware of the damage, but at the latest three years after the event giving rise to the claim.
11.3. If the activity is carried out with the involvement of a third party, e.g. a data processing company, a chartered accountant or a lawyer, and the client is notified of this, warranty and liability claims against the third party arising under the law and the conditions of the third party are deemed to be assigned to the client.
12. Loyalty
The contracting parties undertake to mutual loyalty. They will refrain from any poaching and employment, including via third parties, of the other contracting party's employees who have worked on the realisation of the orders, during the term of the contract and for 12 months after termination of the contract. The contracting party acting in breach of this is obliged to pay flat-rate damages in the amount of one annual salary or 220 person-days (costs) of the employee.
13. Data protection, public law provisions and confidentiality
13.1. The contractor undertakes to maintain secrecy about all matters that become known to it in connection with its activity for the client. This duty of secrecy relates both to the client and to its business connections.
13.2. Only the client itself, but not its vicarious agents, can release the contractor from this duty of secrecy in writing.
13.3. The contractor may hand over reports, expert opinions and other written statements about the results of its activity to third parties only with the client's consent.
13.4. The contractor's duty of secrecy also applies to the time after termination of the order. Excepted are cases in which a statutory obligation to provide information exists.
13.5. The contractor is authorised to process personal data entrusted to it within the framework of the purposes of the order, or to have it processed by third parties. The contractor guarantees the obligation to safeguard data secrecy in accordance with the provisions of the Data Protection Act. Material handed over to the contractor (data carriers, data, control figures, analyses, programs etc.) as well as all results from the performance of the work are, in principle, returned to the client.
13.6. C1.IT Solutions GmbH stores or uses master data and traffic data in accordance with the relevant statutory provisions, in particular §87, §92 and §93 TKG 2003.
13.7. C1.IT Solutions GmbH is neither obliged nor entitled to store certain content data for the customer for an unlimited time. Such data is in no case stored for longer than the duration of the term of the customer's contract. In the line and server hosting area, C1.IT Solutions GmbH keeps access statistics. These are available to the customer for a period of two months.
13.8. The customer is subject - also in international data traffic - to the Austrian legal system. The customer is expressly informed of the provisions of the Pornography Act, BGBl. 1950/97 as amended, the Prohibition Act of
8.5.1945 StGBl. as amended and the relevant criminal-law provisions, according to which the mediation, distribution and exhibition of certain content is subject to statutory restrictions or is prohibited. If the customer breaches such laws, it is obliged to hold C1.IT Solutions GmbH completely harmless and indemnified for any damage threatening or arising from this, which also includes all costs of legal defence and prosecution. The customer's responsibility is independent of fault; it is also liable for third persons to whom it grants access to its activities via the connection. C1.IT Solutions GmbH reserves the right to block individual publicly accessible offerings if legal provisions require this.
13.9. The customer undertakes to hold C1.IT Solutions GmbH free from any damage arising from the messages and data it puts into circulation, in particular from private prosecutions for defamation (§111 StGB (Austrian Criminal Code)) or insult (§115 StGB), in proceedings under the Media Act or the Copyright Act.
13.10. The customer gives its consent, revocable at any time, that its master data and traffic data may be used in accordance with §87 para. 3 no. 5 TKG 2003 for the purpose of marketing telecommunications services, but not transmitted. The customer further agrees, until revocation, that it receives advertising and information about products and services of C1.IT Solutions GmbH by email.
13.11. C1.IT Solutions GmbH will store access data and other personal traffic data that are necessary for establishing connections and billing charges, or for technical reasons, as well as for checking the functionality of services and facilities, in particular source IP and all other log files, on the basis of its statutory obligation pursuant to §99 para. 2 TKG 2003, until the expiry of the period within which the invoice can be legally contested or the claim for payment can be asserted, or for as long as this is necessary for the stated technical reasons or for checking functionality. In the event of a dispute, C1.IT Solutions GmbH will make this data available to the deciding body. Until a final decision, C1.IT Solutions GmbH will not delete the data. Otherwise, C1.IT Solutions GmbH will delete or anonymise traffic data immediately after termination of the connection. C1.IT Solutions GmbH will not carry out an analysis of a subscriber connection beyond the purposes of billing according to the subscriber numbers called from this connection, except in the cases specifically regulated by law.
13.12 Content data is not stored by C1.IT Solutions GmbH. Insofar as short-term storage is necessary for technical reasons, C1.IT Solutions GmbH will delete stored data immediately after these reasons cease to apply. If the storage of content is a service feature, C1.IT Solutions GmbH will delete the data immediately after performance of the service.
13.13 Data transmission in the case of credit card payment: The customer gives its consent, revocable at any time, that in the case of payment by credit card requested by it, all billing data may be transmitted in the form necessary for billing to the respective credit card institution.
13.14 Pursuant to §103 TKG 2003, C1.IT Solutions GmbH may compile a public subscriber directory with first name and surname, academic degree, address, email address and internet address as well as, at the subscriber's request, with the job title. C1.IT Solutions GmbH is not obliged to compile a subscriber directory. At the express written request of the subscriber, this entry must be omitted in whole or in part. The data mentioned is used and analysed only for purposes of using the public telephone service. A classification of subscribers into categories for the compilation and publication of subscriber directories is permissible pursuant to §103 para. 1 TKG 2003; otherwise C1.IT Solutions GmbH will not create electronic profiles of customers.
13.15 The customer acknowledges that C1.IT Solutions GmbH may be obliged, pursuant to §94 TKG 2003, to participate in the monitoring of telecommunications traffic in accordance with the provisions of the Code of Criminal Procedure. The customer likewise acknowledges that C1.IT Solutions GmbH may be obliged, pursuant to §106 TKG 2003, to set up call tracing or to lift the suppression of the calling number. Actions of C1.IT Solutions GmbH on the basis of these obligations do not give rise to any claims by the customer. The customer further acknowledges the provisions of the E-Commerce Act (ECG (Austrian E-Commerce Act)), according to which C1.IT Solutions GmbH is, under certain conditions, entitled and obliged to provide information concerning the customer. C1.IT Solutions GmbH will endeavour to observe and comply with the "General Rules on the Liability and Duty of Disclosure of the Internet Service Provider" developed by ISPA (Association of Internet Service Providers Austria) (available at http://www.ispa.at).
14. Contract handling
14.1. The customer supports C1.IT Solutions GmbH in the fulfilment of the order to the necessary extent and provides the necessary infrastructure such as hardware and software configuration, official approvals, necessary power connections as well as suitable contact persons.
14.2. It grants C1.IT Solutions GmbH technically easy access to the hardware and software. For communication between the customer and C1.IT Solutions GmbH, email is to be used as far as possible (support@ebox.at).
14.3. The customer takes appropriate precautions for the event that the software and hardware does not work properly in whole or in part. In particular, the customer will carry out daily data backups if the topicality of its data requires this.
14.4. The customer will not pass on its access to C1.IT Solutions GmbH and the associated services to third parties. All passwords issued by C1.IT Solutions GmbH are to be kept secret, or a change is to be requested immediately if there is a suspicion that unauthorised persons have become aware of them. The customer is liable for damages arising from inadequate secrecy of the passwords by the customer or from passing them on to third parties. Any suspicion of unauthorised use of its access by third parties must be reported to C1.IT Solutions GmbH immediately.
14.5. The customer will notify C1.IT Solutions GmbH in writing of changes to its name or designation, as well as any change to its address or its legal form and its company register number, immediately, but at the latest within one month of the change. If the customer does not notify such changes and, as a result, legally significant declarations of C1.IT Solutions GmbH sent to the address last notified by it, in particular invoices, reminders or terminations, do not reach it, these declarations of C1.IT Solutions GmbH are nevertheless deemed to have been received, and C1.IT is entitled to charge to the customer costs arising from changes.
14.6. The customer must notify C1.IT Solutions GmbH in writing without delay of all circumstances that impair the conditions necessary for the operation of the facilities.
14.7. The customer is not entitled to interfere with the hardware and software of C1.IT Solutions GmbH, insofar as this is not regulated otherwise in a written contract. All disadvantages resulting from this, in particular maintenance or repair costs, are to be borne by the customer, who is also expressly informed that in the event of such an intervention insurance cover may be lost.
14.8. The customer is obliged, and will in this regard also oblige its employees, to keep the confidential information provided to it by C1.IT Solutions GmbH secret even after termination of the contract.
15. Further provisions for telephony products and services
15.1. Attention is drawn to the existence of the single European emergency number 112.
15.2. The subscriber has the option of suppressing the display for incoming and outgoing calls (except for emergency calls).
15.3. Should the connection or the „VoIP account“ (SIP/IAX) be misused by persons outside the business and/or unknown persons (hackers), C1.IT solutions is in NO case liable. It is expressly pointed out that costs, expenses and any liability claims of third parties arising from this are borne exclusively at the expense and cost of the customer. In this connection, it is pointed out that there are corresponding options for limiting costs in the VoIP portal of the VoIP account (blocking of premium-rate numbers, limitation of costs, among others). These settings are made by the customer or, on the customer's behalf, by C1.IT solutions.
16. Miscellaneous
Should individual provisions of this contract be invalid or become invalid, the remaining content of this contract is not affected by this. The contracting parties will cooperate in a partnership manner to find a provision that comes as close as possible to the invalid provisions.
16.1. C1.IT Solutions GmbH is entitled to commission other companies with the provision of services from this contractual relationship.
16.2. Performance periods for C1.IT Solutions GmbH are extended appropriately, for example in the case of strike, lockout, force majeure and events that cannot be influenced by C1.IT Solutions GmbH.
16.3. With firewall systems that are set up, operated or checked by C1.IT Solutions GmbH, C1.IT Solutions GmbH proceeds with the care of a proper provider and the general state of the art, but points out to the customer that absolute security and functionality of firewall systems is not given. No guarantee is therefore given for firewall systems; rather, for disadvantages arising to the customer from the firewall systems set up, operated or checked by C1.IT Solutions GmbH being circumvented or put out of function, liability is accepted only in the case of intent or gross negligence of bodies, employees or vicarious agents of C1.IT Solutions GmbH.
14.4. The customer acknowledges that „port scanning“ (the systematic exploration of open port addresses) is prohibited. C1.IT reserves the right to block the access of the customer carrying this out and to suspend the services.
14.5. C1.IT provides its services with the highest possible care, reliability and availability. However, C1.IT cannot give any guarantee or warrant that services are accessible without interruption, that the desired connections are established at all times, and that stored data is retained at all times.
14.6. The transfer of contracts and the assignment of rights and claims on the basis of these GTC or the individual contracts is permissible only with the prior written consent of C1.IT.
17. Final provision
Unless otherwise agreed, the statutory provisions applicable between full merchants apply exclusively under Austrian law, even if the order is carried out abroad. For any disputes, the local jurisdiction of the court with subject-matter competence for the contractor's place of business, i.e. Vienna, is deemed to be exclusively agreed. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.