1. Scope of services
1.1 The ISP provides the Customer with an operational, dedicated computer system (server hardware and operating system software) or storage space on a virtual server in accordance with the terms of this Agreement, as further described in the Purchase Order or the associated Service Description. The dedicated or virtual server is available to the customer for use to the extent intended. The ISP reserves the right to provide the customer with a computer system comparable to the reference model specified in the order form. As far as possible within the scope of the possibilities for the ISP without additional expenditure and additional costs, consideration is given to the wishes of the customer. However, there is no entitlement to the provision of specific server hardware.
1.2 If a certain capacity is mentioned in the order form, the price list or the specification of services, this applies to the entire storage space of the dedicated or virtual server available according to the agreement and also serves for the storage of log files of the Internet server or the increase of data security by mirroring. The customer may only use the agreed storage capacity. Insofar as exceeding the same result in reduced performance or data losses or delays or the like, the ISP is not liable in this case.
1.3 The customer access (customer zone) is already produced automatically during the order. Domain names are only registered after receipt of payment. The web hosting package will be set up within 24 hours, weekdays.
1.4 After the installation has been completed, the ISP will notify the customer of readiness for operation by letter, e-mail or fax. The acceptance shall be deemed to have taken place if the customer does not indicate any significant defects at the latest two weeks after notification of operational readiness or expressly refuses acceptance. To Consumers: The ISP will alert consumers to this time limit and the legal consequences of not meeting this deadline; Warranty claims of consumers and all other rights of consumers remain unaffected.
1.5 In the event of a hardware failure, the ISP provides free replacement of the defective components, including installation, as well as the restoration of the system with complete configuration of the operating system as in the initial setup and data recovery from the last backup. The ISP will strive for a speedy settlement. However, the ISP is entitled to demand compensation for the restoration services in accordance with the agreed hourly rate for other services, provided that the failure is attributable to the sphere of the customer or, if it is not a warranty case.
1.6 The customer has no real rights to the server and no right to access the premises in which the server is located.
1.7 The ISP operates and maintains the server and provides the connection of the server to the Internet. The constant availability as well as the flawless function can not be guaranteed for technical reasons. The ISP monitors the functioning of the server and its connection to the Internet and strives to resolve any errors, interruptions or malfunctions immediately. To anticipate interruptions, failures, hardware failures, etc., the ISP will once a week create a backup of the server system's data.
1.8 The ISP is entitled to partially or completely shut down the server stability of a customer's troublesome services, and if the impairment continues, the scope of service may be adjusted. If certain offers and options burden the server stability over the normal measure (Fair Use Policy) or commercial improvements are to be made, the range of functions can also be changed.
1.9 The customer is obliged to back up all files and software settings which he can access regularly, at least once a day, and to keep the backup up to date; In any case, the preparation of backup copies must be made before the customer makes any changes and in any case before the maintenance work announced by the ISP. This also applies if and insofar as the ISP has undertaken to create backups. The backup copies (backup copies) of the customer must not be stored on the server.
2. charges, price changes and terms of payment; Objections to the bill
2.1 The ISP charges a one-time set-up fee, a monthly provision fee and, if applicable, additional usage or support prices as per the order form. The prices stated in the order form are exclusive of statutory sales tax; towards consumers, gross prices are given. The costs do not include the costs of internet access. A customer's Internet access will be provided by the ISP against a separate agreement and the applicable terms and conditions.
2.2 The ISP reserves the right to change the fee if the costs for the calculation change. If discounts have been agreed with the customer compared to the usual price list, the customer does not participate in any price reductions, unless otherwise expressly agreed. For consumers, the fees are in particular made up of server costs, server housing costs and related services, energy costs, staff costs, room charges, fees and taxes; should the underlying costs change, the fee increases or decreases accordingly; for consumers, however, this only applies insofar as the underlying costs have changed as a result of circumstances beyond the control of the ISP; Furthermore, a fee increase for consumers may not be demanded for services that are to be provided within two months after the conclusion of the contract.
2.3 The ISP reserves itself to companies, without prejudice to any claims for damages and subject to the right to premature termination of the contract, an immediate and immediate right of price change, if it comes to an unusually high use of the server or unusually high data transfer.
2.4 Charges shall be paid in advance unless otherwise expressly agreed in writing, except to consumers. Payments are due promptly upon receipt of invoice without deductions. Payment is by payment form, bank transfer. A recurring annual payment of fees is made by credit card payment by means of MPay24 GmbH. carried out in Vienna, the amounts due annually are deducted automatically. In the course of the recurring credit card payment, the data necessary for the payment are temporarily stored at MPay24.
2.5 In the event of default of payment by the customer, ISP shall be entitled to charge all costs, processing fees and interest for default in the amount of 12% pa from the day of the delay.
2.6 The counter-clearing with open claims against the ISP and the retention of payments due to alleged claims of the customer that are not recognized by the ISP are excluded. For consumers: offsetting against outstanding claims against the ISP is only possible if either the ISP is insolvent or the reciprocal claims are in a legal context, or the counterclaim of the customer has been judicially determined or recognized by the ISP.
2.7 Rights of the customer to refuse his contractual services in accordance with § 1052 ABGB for the purpose of obtaining or securing the consideration, as well as his legal rights of retention are excluded. This provision does not apply to consumer transactions.
2.8 Objections to claims invoiced by the ISP must be made in writing by the customer within four weeks, otherwise the claim shall be deemed accepted. The ISP will alert consumers to this deadline and to the legal consequences of non-compliance. The customer, unless he is a consumer, must initiate the arbitration procedure of the RTR (Broadcasting and Telecommunications Regulatory Authority or its legal successor) within one month from receipt of an opinion of the ISP, otherwise only if and insofar as one Competence of the regulatory authority) or to take legal action.
2.9 Objections do not hinder the due date of the invoice amount. If the RTR is called to settle disputes, this will postpone the due date of the disputed charges; however, an amount equal to the average of the last three months of undated may also be due immediately. If an error is found that could have been to the detriment of the customer and the correct fee can not be determined, the customer has to pay a fee, which corresponds to the average of the last three invoice amounts.
2.10 The customer shall be liable for all payment claims resulting from the use of the service provided to him or his access data (including by third parties), provided that the misuse is the responsibility of the customer.
2.11 If the customer chooses the payment method SEPA Direct Debit (direct debit authorization) or credit card and this can not be carried out for reasons that are not the responsibility of the ISP (eg because there was no account coverage or the customer does not inform the ISP about any changes to his Bank data), the ISP is entitled to change the payment method for this customer until further notice on bank transfer. The ISP will inform the customer about this. For any such return debit, the ISP is entitled to charge the customer any back-loading charges of the bank or the credit card company as well as a reasonable processing fee.
2.12 All prices are daily prices.
2.13 The currency unit is Euro (EUR).
2.14 The withdrawal period for distance contracts or a distance contract is 14 days. It begins with contracts for the supply of goods with the day of their receipt by the consumer, and contracts for the provision of services with the day of the conclusion of the contract. It is sufficient if the resignation is sent within the deadline.
There is no right of withdrawal for contracts over
* Services commenced as agreed by the consumer within 14 days of the conclusion of the contract,
* Goods or services the price of which depends on the development of rates in the financial markets over which the entrepreneur has no control,
* Goods that are made to customer specifications that are clearly tailored to personal needs that, by their very nature, are not suitable for returns that may spoil quickly or that have expired,
* Audio or video recordings or software, if the delivered goods have been unsealed by the consumer,
* Newspapers, magazines and magazines with the exception of contracts for periodicals (§ 26 (1) no. 1),
* Betting and lottery services as well
* Home deliveries or leisure services (§ 5c para. 4 items 1 and 2).
If the consumer withdraws from the contract, the contractor must gradually reimburse the entrepreneur for the payments made by the consumer and replace the necessary and useful expenditure made by the consumer on the matter, put the consumer back on the benefits received and pay the entrepreneur an appropriate remuneration Use, to pay. Costs may be imposed on the consumer only for the direct costs of the return, if the parties have agreed to do so.
If the consumer withdraws from a distance contract in which the consideration for the good or service is wholly or partly financed by a credit granted by the trader or in economic unity by a third party (§ 18), the withdrawal also applies to the consumer credit agreement.
3. Term of contract and termination; Data deletion on termination
3.1 Contracts concluded between the contracting parties for the purchase of services or other continuing obligations are, unless otherwise expressly agreed and agreed in writing, except for consumers, concluded for an indefinite period. The contract may be terminated at any time unless otherwise expressly agreed in writing, except in relation to consumers, at the latest 2 months before the beginning of the new service period. Terminations by the customer require a registered letter (if the customer is a consumer, the simple written form is sufficient). The date of the postmark is decisive for the timeliness.
3.2 The ISP is entitled in the event of default in payment after unsuccessful reminder in writing or by electronic means, setting a grace period of two weeks and threat of service interruption or contract termination in its sole discretion to interrupt service or to terminate the continuing obligation with immediate effect.
3.3 The ISP is further entitled to immediate termination of the contract or service interruption or service shutdown, if the conduct of the customer or persons attributable to him makes the continuation of the contract unreasonable, in particular if the customer does not comply with the "Netiquette" or despite the request of the ISP disturbing or unauthorized Facilities are not promptly removed or misused or misused, violate or breach any contractual obligations, or cause unusually high data transfers. The ISP must take the proportionality aspect into account. The decision between contract termination on the one hand and mere service interruption or service shutdown on the other hand is at the discretion of the ISP.
3.4 All cases of justified immediate termination of the contract, service interruption or shutdown, which occur for a reason that is attributable to the sphere of the customer, leave the claim of the ISP on the consideration for the contractually agreed term until the next termination date and on the assertion of Claims for damages unaffected.
3.5 The customer is expressly advised that upon termination of the contractual relationship, the ISP is no longer obliged to continue the agreed services. The ISP is therefore entitled to delete stored or retrievable content data. The timely and regular retrieval, storage and backup of such content data is therefore the sole responsibility of the customer. Therefore, the customer can not derive any claims against the ISP from the justified deletion.
4.1 The customer may not install, use or otherwise use any software on the server other than that made available to him under this Agreement or that has been separately agreed to in writing and except by Consumers. In case of violations, the customer is obliged to indemnify and hold the ISP harmless.
4.2 The ISP reserves the right to deactivate already installed software at short notice without prior notice, provided that it endangers the operational or data security. The customer will be informed by letter, fax or e-mail.
4.3 In any case, the customer must also ensure that the programs used by him do not cause any disruption. Disruptions that affect the facilities or services of the ISP are a cause for the ISP to terminate or terminate the service immediately.
4.4 If the customer independently accesses the server from outside, this is done by means of suitable software to be procured by the customer. If offered by the ISP, the ISP is prepared to provide required software for a separate fee and, except for consumers, a written agreement. Also in this case, the customer is granted a non-exclusive license to use the software; the license terms of the software must be strictly observed, in case of injury the customer will indemnify and hold the ISP harmless; a copy of the license terms will be sent to the customer on request.
5. Responsibility of the customer for content and use
5.1 The customer undertakes not to deposit any unlawful content or information on the server nor to point out in any form any illegal contents offered by him or third parties or to publish links to such offers. In case of violations, the customer is obliged to indemnify and hold against the ISP. This also applies to any other form of misuse. For the control of contents of the customer, which are stored or transported on the server, the ISP is neither justified nor obligated. The ISP is not liable for these contents, even if the access to these contents takes place via a link from the homepage of the ISP. If the ISP is claimed for this, the customer is obliged to completely indemnify and hold harmless.
5.2 The customer takes note of the provisions of the Telecommunications Act in the current version and the obligations of the owners of terminal equipment defined therein. He is committed to compliance with the provisions of the Telecommunications Act and relevant telecommunications standards and all other statutory provisions. The customer is expressly referred to the provisions of the Pornography Act, the Prohibition Act and the relevant criminal law provisions, according to which the mediation, distribution and exhibition of certain content is subject to legal restrictions or prohibited. Customer agrees to abide by this law and to assume sole responsibility to the ISP for compliance with this legislation. The customer undertakes to indemnify and hold the ISP harmless if the ISP is charged with civil, criminal, judicial or extrajudicial use of the content placed on the market by the customer, in particular by private charges for libel, insult or credit damage Proceedings according to the media law, the copyright law, the trademark law, the law against unfair competition or because of civil honor insult and / or credit damage. If the ISP is claimed, it is up to it alone to decide how to respond to it, without the client responsible for the content - except in the case of gross negligence by the ISP - raising the objection of inadequate legal defense.
5.3 The customer undertakes at all not to use the contractual services in any way that leads to the impairment of third parties or for the ISP or other security or operational hazard, otherwise he will indemnify and hold harmless the ISP. He further notes that in case of excessive data transfer, the server may be overloaded and therefore may not work. Any claims in this regard against the ISP are excluded. In addition, the customer undertakes to inform the ISP immediately and completely in the case of other damages, if he is seized from the use of the contractual services in court or out of court.
5.4 The customer acknowledges that the ISP does not have an unrestricted obligation to transport the data or connect the server to the Internet. In any case, there is no such obligation if the ISP itself would otherwise be exposed to the risk of legal persecution.
5.5 The customer is obliged to unconditionally secure his connection, his terminals and his access data to protect against unauthorized access. The customer acknowledges that the storage of passwords, access data and other secret information on the hard disk of a PC is not secure. Furthermore, he notes that by retrieving data from the Internet viruses, Trojan horses or other components can be transferred to his terminal, which can have a negative effect on his data or lead to misuse of his access codes. Likewise, the customer acknowledges that this can be done by "hackers". The ISP is not responsible if the ISP has not acted deliberately or through gross negligence. Remuneration claims generated thereby are to be paid by the customer (except in the case of fault of the ISP). The customer is obliged to immediately notify the ISP of any suspicion that his access data or other secret information may have been disclosed to unauthorized third parties. In any case, the customer is liable for damages caused to the ISP by insufficient secrecy of the access data by the customer; by passing on to third parties; by not promptly announcing a suspicion that data may have been disclosed to unauthorized third parties or due to inadequate security of its terminals and systems.
5.6 The customer may not search for data of other customers of the ISP or the ISP itself, who are not aware of it, nor pass them on, or sell them, or otherwise exploit them or information about their accessibility. If the customer encounters such data that are not intended for his knowledge or if he receives information about how to access them, the customer must immediately inform the ISP and in any case maintain confidentiality.
6. Warranty; Liability and disclaimers
6.1 The ISP does not warrant that the server ordered by the customer and the software will meet all the customer's requirements, that it will work with other programs of the customer, that the programs will run uninterrupted and error-free, or that all errors will be rectified. Compared to entrepreneurs, moreover, the warranty is limited to reproducible (constantly repeatable) deficiencies in the program function.
6.2 Defects subject to warranty shall be remedied at the discretion of the ISP either by repair or replacement. Conversion or price reduction are excluded by mutual agreement. The warranty expires if repairs or changes have been made by third parties. Warranty claims assume that the customer has reported the defects immediately in writing and in detail. Point 6.2 does not apply to consumer transactions.
6.3 The warranty does not cover defects resulting from installation and assembly not performed by the ISP, improper installation, non-compliance with installation requirements and conditions of use, overuse of the service specified by the ISP, incorrect handling and use of unsuitable software or other operating materials; this also applies to defects attributable to material or software ordered by the customer. The ISP is not liable for damage resulting from atmospheric discharges, surges and chemical influences.
6.4 The ISP operates the services offered with the utmost care, reliability and availability. For technical reasons, however, it is not possible that these services are accessible without interruption, that the desired connections can always be made or that stored data is retained in all circumstances. The constant availability of the contractual services of the ISP can therefore not be guaranteed and is beyond the sphere of influence of the ISP. IP connectivity to other network operators is made as far as possible. Any liability for problems that have their cause in the networks of third parties is excluded. The use of other networks is subject to the restrictions of use of the respective operators (acceptable use policy). Force majeure, strikes, restrictions on the services of other network operators or repair and maintenance work may lead to restrictions or interruptions. The ISP is not liable for such failures. Otherwise, the general liability restrictions apply. Warranty claims of consumers remain unaffected. In the case of unreasonable lay interruptions or unreasonable restrictions, the right of the customer to terminate the contract for good cause remains unaffected.
6.5 The liability of ISP under this contract is generally excluded for slight negligence as well as for consequential damages and lost profit. Notwithstanding the first sentence applies to consumers: the liability of the ISP for slight negligence, except for personal injury, is excluded.
6.6 The customer is obliged to inform the ISP immediately of any interruption or disruption of contractual telecommunication services or devices in order to allow the ISP, insofar as the ISP is contractually obliged to remedy the problem, before the customer other companies for whatever reason tasked with troubleshooting. If the customer violates this obligation to understand, the ISP accepts no liability for any damage or expenses incurred by the customer (eg costs of a contractor commissioned by the customer). If the ISP does not detect an error for which the ISP is responsible, the customer shall reimburse the ISP for the expenses incurred by the ISP in accordance with the hourly rate for ISP services provided in the price list and any cash expenses incurred.
6.7 In the case of firewalls that have been set up, operated or checked by the ISP, the ISP will use care, however, indicating that absolute security and full functionality of firewall systems are not present. The liability of the ISP for disadvantages resulting from the fact that installed, operated or checked firewall systems are bypassed or rendered inoperative is therefore excluded unless the ISP has caused it deliberately or through gross negligence.
6.8 The ISP will endeavor to announce maintenance or changes to the server as far as possible, in writing, by fax or e-mail at least seven days in advance, if the maintenance activity or modification is expected to result in a loss of availability or otherwise an advance notice seems necessary.
6.9 The warranty is in accordance with the statutory provisions.
Failure to perform necessary maintenance or repair operations and failures during the agreed maintenance window shall not result in Customer's claims against the ISP, unless the ISP is at fault for the failures, and under the general liability provisions of this Agreement liability for ordinary negligence (excluding personal injury) Consumers) is excluded.
7. Data protection regulations
7.1 Information concerning the processed data
On the basis of § 87 and § 92 of the Telecommunications Act (TKG), the ISP will store personal customer data: academic degree, first name, surname, date of birth, company, address, e-mail address, telephone and fax number, sector, job title, Request date, payment modalities, as well as incoming payments for evidence retention of the contractual relationship, also process protected by automation and delete at termination of the contract, unless further storage to fulfill legal obligations or enforcement of outstanding claims against the customer by the ISP is necessary. The ISP becomes personal brokerage data, which are necessary for the establishment of connections and the set-off of charges, in particular log files in the context of the § 93 TKG, because of its legal obligation in accordance with § 87 Abs 3 and § 93 Abs 2 TKG for and until clarification of open charges questions save to the necessary extent and can lead in the legal framework an access statistics.
7.2 Inclusion in a reference list
The customer allows the ISP to include his name or company in a reference list, which may also be published on the ISP's website. This consent can be revoked at any time in writing.
7.3 Telecommunication secrecy and data protection
The ISP and its employees are subject to the secrecy of telecommunications according to § 88 TKG and the confidentiality obligations of the Data Protection Act and the TKG. Acts of the ISP in compliance with legal or regulatory obligations do not trigger claims of the customer.
7.4 Use of data for marketing purposes
Customer agrees to use its master data and statistical analysis of access to Customer's hosted Websites for the purpose of communicating with Customer and, in particular, for developing, analyzing needs and improving solutions and offers to Customer.
7.5 Consent to e-mail advertising
The Customer agrees to receive reasonable publicity from the ISP for advertising and information regarding products and services provided by the ISP, as well as products and services of the ISP's business partners. The data of the customer including his name, company and his e-mail address remain exclusively with the ISP and will not be passed on to third parties, not even to business partners of the ISP. The customer can revoke this consent at any time in writing by fax or e-mail.
7.6 Data security
The ISP must take all technically possible and reasonable measures to protect the stored data in the sense of the data security regulations of the DSG. Should a third party unlawfully succeed in bringing data stored at the ISP into its power of disposition or to continue using it, the ISP is liable to the customer only in case of intentional or grossly negligent behavior. In a modification of this applies to consumer transactions: the liability of the ISP is excluded if the ISP or a person for whom the ISP is responsible for material damage merely slightly negligent.
8. Special provisions for domain registration
8.1 The ISP arranges and reserves the requested domain in the name and for the account of the customer, provided the desired domain has not yet been assigned. The domain is set up for .at, .co.at and .or.at addresses by the registration office nic.at, for other addresses by the responsible registry, see: https://opensrs.com/wp-content/ uploads / OpenSRS_Registration_Agreement_v1_25_May_2018.pdf. The ISP acts as the invoicing authority for the domains managed by nic.at for the duration of this contract (unless otherwise agreed); However, the contractual relationship for the establishment and management of the domain exists in any case directly between the customer and the registration office. The registration fee that accrues to the registrar is included in the amounts invoiced by the ISP to the customer (unless otherwise agreed). In the case of domains not managed by nic.at, billing between the customer and the domain administration institution takes place directly, unless otherwise agreed; In this case, the ISP settles the fee for the registration, the technical equipment used and an administrative fee as agreed.
8.2 The customer acknowledges that the contract of the customer with the registration office does not automatically end when the contract with the ISP is terminated, but the customer must instead terminate this contract with the registration authority.
8.3 In relation to the domain, the general terms and conditions of nic.at (available at www.nic.at) or the respectively responsible registration office, in particular the regulations, can be found under https://opensrs.com/wp-content/uploads/Tucows_ExhibitA .html; these will be sent to the customer by the ISP upon request.
8.4 The ISP is not obliged to check the admissibility of the domain, for example in terms of trademark or name law. The customer declares to observe the relevant legal provisions and in particular to infringe nobody in his trademark rights and will indemnify and hold the ISP harmless.
9. Other provisions
9.1 Insofar as not legally excluded, the statutory provisions applicable between general merchants apply. This provision does not apply to consumer transactions. Austrian law applies with the exception of the UN Sales Convention and non-binding reference standards. Furthermore, the general terms and conditions of the ISP apply, as far as these conditions do not conflict with the provisions of the General Terms and Conditions.
9.2 All notifications and declarations of the customer concerning this contractual relationship must be made in writing, unless otherwise expressly agreed.
9.3 For any disputes arising from the present contract, the local jurisdiction of the court having jurisdiction in the seat of the ISP is agreed. This does not apply to consumer businesses. If the customer is Konstument within the meaning of the KSCHG, the jurisdiction of that court is considered to be justified, in whose district the domicile, habitual residence or place of employment of the customer lies.
9.4 The ISP is authorized to transfer its obligations or the entire contract to a third party with a debt-discharging effect. This does not apply to consumer businesses. For consumer transactions the following applies: The ISP is authorized at its own risk to commission other companies with the provision of services from this contractual relationship.
9.5 The customer must immediately notify changes in his address in writing. Documents are deemed to have been received by the customer if they have been sent to his last known address.
9.6 The place of performance for all transactions is Vienna.
9.7 Should a condition of these terms and conditions be invalid, this does not affect the entire validity of the terms and conditions.
Information, complaints and data information at:
Phone: +43 1 505 66 10
Fax: +43 1 505 66 10 24
This document was last updated on September 8, 2018
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