T&C

1. Validity

The GTC of kreativquadrat - Gerald Mayr in cooperation with absolutinternet (abbreviated: AI) apply to all current and future business transactions with the client. Deviating terms and conditions only apply if they are confirmed in writing by AI. To the extent that these GTC do not contain deviating provisions, the terms and conditions of the Austrian advertising agencies (published by: WK Austria) and the general delivery conditions of the Austrian electrical and electronics industry and the software conditions of the Austrian electronics industry (published by the Federal Association of the Austrian Electrical Industry) in their respective current versions shall apply subsidiarily. For country domains, the GTC of the respective national registration authority apply. For .at domains, these are the GTC of the company Nic.at (http://www.nic.at/de/agb/ag_agb.asp)
The customer acknowledges that AI also sends contract-relevant information (e.g. changes to the GTC) to the customer by email. The customer is therefore obliged to notify AI immediately of any changes to their contact information, in particular their contact email address. AI is not liable for damages or disadvantages arising from the customer's breach of this obligation to provide information.

2. Formation of the contract

Purchase contracts and other orders are concluded upon receipt of the buyer's declaration of intent. Orders should preferably be sent to AI in writing. Written confirmation by AI is not strictly necessary. The customer remains irrevocably bound by their submitted order offer for four weeks. Vicarious agents and partners of AI have no authority whatsoever, including the authority to receive declarations (e.g. complaints about defects). Related verbal commitments are only valid if and to the extent that they are confirmed in writing by AI.

3. Prices and payment

All prices listed in AI's price lists and offers are in euros excluding VAT. Payments are due promptly upon receipt of invoice without deduction. For projects with a total volume of more than €10,000, unless otherwise agreed, 1/3 of the amount is payable upon placement of the order and 2/3 upon acceptance. In general, AI is entitled to issue partial invoices for order amounts exceeding €1,000. Additionally or subsequently commissioned services not included in the order confirmation will be invoiced separately.
Delivered goods remain the unrestricted property of AI until full payment has been made. Online presentations will only be published on the internet by AI after full payment by the client. Should the client have payment arrears from previous or other orders/periods, AI is not obliged to carry out the activation until these arrears have been settled. Costs for items listed as annual, in particular for domains and web space, are collected annually in advance. (cf. Point 6)
Payments can only be made with debt-discharging effect at AI's registered office or by transfer to an account specified on AI's business documents. The client is liable for smooth processing by the commissioned bank when making payments by cashless payment transactions and/or direct debit. All charges incurred thereby are to be borne by the client. Payment is only deemed effected when it has been finally credited to AI's account.
In the event of default of payment, even with only one outstanding claim, all open claims – including those from other transactions and regardless of any deviating payment agreement – become immediately due and AI may, at its discretion, immediately demand payment or security for the outstanding claims – in particular by bank guarantee – and suspend fulfilment of its obligations until payment or security is provided, or withdraw from the contract without notice and claim damages for non-performance.
The client undertakes to reimburse AI for all costs and expenses actually incurred as a result of their default in payment and necessary for appropriate legal enforcement; these include, notwithstanding any procedural obligation to reimburse costs, the costs of securing evidence, out-of-court costs, in particular reminder costs, the standard fees for engaging a licensed debt collection agency, the costs of engaging a credit agency or credit protection association, as well as the standard fees of a lawyer. Furthermore, AI is entitled to charge default interest of 6% p.a. above the 3-month Euribor at the time of maturity, but at least 12% p.a. Incoming payments are generally first credited to incurred charges and costs, then to interest, and finally to the outstanding principal.
AI reserves the right to change prices at any time and with immediate effect if there is an unusually high volume of requests to web pages hosted by AI belonging to the customer or unusually high data transfers for the customer's unlimited access (fair use agreement). AI will notify the customer of the price change; the customer may then declare termination of the contract within two weeks of receiving notification of the price change, otherwise the price change shall be deemed agreed.
AI is furthermore entitled to charge customers for services that arise for AI due to faulty programming of customer applications and/or faulty behaviour of the customer for its rectification.
If the customer transfers the domain and/or presentation to another provider prematurely or the contractual relationship is terminated for other reasons attributable to the customer, no refund of payments already made will be given.
Invoicing is carried out electronically unless otherwise agreed.

4. Services

Announced delivery or performance dates, unless fixed transactions have been agreed, are considered merely approximate estimates. If an agreed delivery date is exceeded by more than 4 weeks, the buyer may set a grace period of four weeks in writing and withdraw from the contract after its expiry. In this case, it is to be assumed that the agreement could not be fulfilled without fault on the part of AI. Claims for damages against AI are excluded. AI is free to deliver in partial deliveries. The buyer is obliged to accept partial deliveries, which may also be invoiced separately. Cases of force majeure relieve AI of its delivery or performance obligation. The same applies to all unforeseen disruptions and complications of the delivery possibility independent of AI's will, such as operational disruptions of any kind, raw material shortages and official measures of any kind.
The client is responsible for the complete and clearly arranged compilation of the material required for the presentation of their content on the internet or on another data medium (e.g. CD-ROM, DVD) in easily processable (preferably digital) form.
From the time the complete documents are provided, AI guarantees the preparation of the content within the set deadline. Exceeding this deadline by up to 20% of the project duration does not constitute a reduction in service and does not entitle the client to price reductions or withdrawal. The client is only entitled to withdraw from the contract if the activation or completion is not carried out within this grace period due to fault on the part of AI.
AI is entitled to make changes to the service and the technical environment without notifying the customer, provided that the quality of the service is not impaired thereby or this takes account of technical progress and thus represents an improvement of the service.
AI is not obliged to check the permissibility of the domain, for example in terms of trademark or name law.

5. Liability & disclaimer

AI undertakes to proceed with appropriate commercial diligence when providing services. AI is not liable for services provided by or obtained from third parties, unless these are vicarious agents of AI.
AI assumes no liability or warranty for the availability of external internet services or services that are not within AI's sphere of influence. (servers and data lines)
Liability for damages of any kind, except in cases of gross negligence, is mutually excluded. Regardless of the degree of fault, any liability for consequential damages and loss of profit is excluded.
Claims due to defective activation or other defects, in particular warranty and damage claims, only exist if the defect is reported by the client without delay upon becoming aware of it or upon having the opportunity to become aware of it, and AI does not carry out a remedy within a reasonable period. Warranty claims are limited to rectification, and alternatively to a price reduction.
AI is not liable for the content of transmitted data or for the content of data accessible through AI's contractual services, not even if access is made via a link from AI's entry page.
Liability in software development: AI does not warrant that the supplied components, including the delivered software, meet all functional requirements of the client, unless this has been expressly made part of the contract. For software products, the warranty is limited to defects in the program function that are reproducible at any time. The client must, with immediate exclusion of warranty claims, inspect the goods/service carefully for defects immediately, at the latest within 21 days of (partial) completion and/or delivery, and notify AI of any defects detectable during this inspection by registered letter with a precise description of the nature of the defects and the extent to which the goods or service are affected by the defect. Otherwise, the goods/service shall be deemed accepted and approved. AI is released from any liability for damages and any warranty obligation that could arise from the defectiveness of the goods or service if the client fails to comply with these obligations. If defects have only occurred in part of the delivery/service, the client may only complain about that part and not the entire delivery/service as defective. The client is obliged to enable the contractor to take all measures necessary for the investigation and rectification of the defects.
AI's warranty obligation is conclusively regulated in these General Terms and Conditions. Further claims, in particular as a result of an interruption of internet services or data loss, are expressly excluded. Furthermore, AI is not liable for the content of data transmitted by it or by third parties or otherwise accessible via AI's components, nor for errors, disruptions or damages attributable to improper use, contamination with computer viruses or the like, use of unsuitable organisational means and data carriers, as well as abnormal operating conditions.

6. Customer obligations and liabilities

The customer is solely responsible for every use and utilisation of services (e.g. web space) and undertakes to comply at all times with the relevant provisions of domestic and foreign law, in particular the regulations of criminal law, data protection, telecommunications and copyright. The customer is obliged to refrain from storing and/or sending information of an extremist, pornographic, fascist or otherwise offensive nature and to respect the privacy of recipients. AI does not review the information stored/sent by the customer. The customer alone is liable for this.
The customer undertakes not to send mass mailings or mailings for advertising purposes when using the offered service without the prior (revocable) consent of the recipient (§ 101 TKG).
The customer is further obliged to use the services properly, to refrain from unlawful and harmful actions and to observe the principles of data security (keeping passwords confidential, etc.).
For applications programmed by the customer or third parties, the customer must ensure that the security of AI's server is in no way endangered. In particular, the customer must ensure the compatibility of the components used with the server, carry out necessary updates and close any security vulnerabilities. If the server is endangered, AI has the right to deactivate or even delete the customer's application immediately, without prior notification of the customer. The customer has no claim to compensation as a result. AI is entitled in this case to charge the customer for the associated expenses (see Point 3).
The customer is responsible to AI for any use of their access by third parties.
The customer is liable for all consequences and disadvantages that AI and third parties incur as a result of unlawful, contractually non-compliant or abusive use as well as improper programming. The customer shall fully indemnify AI in this regard.
Data and resource-intensive customer applications, in particular web radio, web TV and Web 2.0 applications, must be communicated to AI in advance and tested for server compatibility.
The sending of mass emails and newsletters to more than 200 recipients is prohibited.

7. Contract duration & termination

The contractual relationship is concluded for one year and is automatically renewed for a further year without any further declaration being required, unless it is terminated in writing with a notice period of 6 weeks before the expiry of the original or extended contract duration. The price lists valid at the beginning of each renewal period shall apply for the respective extensions of the contract duration.
If the customer is a consumer within the meaning of § 1 para. 1 KSchG, they may withdraw from a contract concluded at a distance or from a contractual declaration made at a distance (e.g. order by post or fax via order form or registration via the internet) within 7 working days. Saturday does not count as a working day. The withdrawal period begins on the day of delivery of the ordered goods or, in the case of services, on the day of conclusion of the contract. The declaration of withdrawal is timely if it was sent within the deadline. There is no right of withdrawal pursuant to § 5f KSchG in certain cases, in particular for goods manufactured according to customer specifications and for opened software. For services, there is no right of withdrawal if the provision of the service commences by agreement within 7 working days of receipt of the contractual declaration. The customer agrees to the commencement of service provision within 7 working days. If the consumer withdraws from the contract pursuant to § 5e KSchG, they shall bear the costs of return shipment in the amount of the postal charge.

8. Miscellaneous

Declarations to AI such as in particular complaints about defects, terminations or other legally relevant declarations and notifications of any kind must be addressed in writing, by fax or by email to AI's registered office and shall only be deemed received by AI at the time they actually arrive at AI. Complaints about defects relating to "software development" must be sent to AI's registered office by registered letter. (cf. Point 5)
The client is expressly advised that no data, images, texts, information, identifiers, etc. may be used to which the client does not have unrestricted ownership or the right of disposal and use, in particular if copyright or other protection exists for third parties or if this could give rise to a breach of competition law. Furthermore, the client is advised that the materials and content handed over to AI must not violate any regulations and must not offend public morality. This applies in particular to right-wing extremist and pornographic content. This agreement also applies to web accounts on AI's server maintained by customers themselves. If AI is held liable by third parties, the client is obliged to indemnify and hold AI harmless.
The transfer of account data and passwords is not permitted. The client undertakes to ensure the careful storage of identifiers and passwords and is liable if any damages arise as a result of a breach of this obligation. AI assumes no warranty or liability of any kind for software (demos, games, etc.) classified as public domain or shareware. The terms of use specified by the author for this software or any licence regulations must be observed. Should AI be held liable by third parties in this connection, the client is obliged to indemnify and hold AI harmless.
Any misuse of services from network services is prohibited and results in immediate exclusion from these services. AI reserves the right to dissolve the contractual relationship with immediate effect and to remove the content from the respective network if the client is guilty of a breach of contractual or legal obligations.

9. Domain applications

For domain applications for customers, the provisions of the respective national registration authority (e.g. nic.at) apply. Domains are generally allocated on a first come, first served basis or (in the case of new allocations) also by random selection. Absolut Internet therefore assumes no responsibility in any case for the success of a registration and is therefore to be held harmless in any event.
The customer declares to observe the relevant statutory provisions and in particular not to infringe anyone's trademark rights and will fully indemnify and hold AI harmless in this regard. Since third-party rights may possibly exist in relation to a domain, AI cannot guarantee the receipt and/or continued existence of the domain.

10. Additional provisions for firewalls

For firewalls installed and/or inspected by AI, AI proceeds in principle with the greatest possible care within the framework of the respective state of the art. AI points out, however, that absolute security of firewall systems cannot be guaranteed. AI's liability under the title of warranty or damages for any disadvantages that arise from the firewall system installed at the contractual partner's premises being bypassed or rendered inoperable is therefore excluded.
AI points out that liability for application errors by the contractual partner or their agents and employees is equally not assumed, as in the case of unauthorised modifications to the software or configuration without AI's consent.

11. Additional provisions for services and online applications

The use of AI services/applications by third parties as well as the transfer of AI services/applications to third parties, in whatever form, requires the express written consent of AI. This applies in particular to internet applications developed by AI (easyweb, easycontent, …), which are fundamentally installed on AI's server and may only be installed on external servers after signing a confidentiality agreement.
Unless otherwise agreed, the client receives (subject to payment of the annual costs) an unrestricted right of use in terms of time and location for online applications. This is limited to the respectively defined project. The right to edit and the right to sell require express written consent. Unless expressly agreed in writing, the source code for programming services remains with Absolut Internet.

12. Spam filter and virus protection

AI checks incoming customer emails at the server level for viruses and/or spam and filters these out. Nevertheless, no guarantee can be given for absolute virus protection. AI assumes no liability for (consequential) damages that may arise for the customer from emails that have not been forwarded (= filtered out).

13. Data security

Unless expressly agreed, AI assumes no responsibility whatsoever for the data security of presentations that are independently maintained by the client. For applications managed by AI, a data backup is created at least weekly. Otherwise, the deadlines set out in the respective service contract shall apply.
AI must take all technically possible and reasonable measures to protect the data stored with it. Should a third party succeed in unlawfully gaining control of data stored at AI or using it further, AI shall only be liable to the customer in cases of intentional or grossly negligent conduct.

14. Place of jurisdiction and applicable law

The legal relationship between AI and the client is governed by Austrian law. The court responsible for Schwaz is agreed as the place of jurisdiction for any disputes. Any invalidity of individual points does not affect the validity of the remaining points of the GTC.
As of: February 2011