General terms and conditions

  1. General information

1.1 The Contractor shall provide the Customer with services in information technology and the operation of hardware and software components in compliance with the enclosed Service Level Agreements (SLAs) which form an integral part.

1.2 These General Terms and Conditions shall apply to all present and future services provided by the Contractor to the Customer, even if in individual cases no express reference is made to the General Terms and Conditions when the contract is concluded. The Client’s terms and conditions shall only apply if they have been accepted in writing by the Contractor.

 

  1. Scope of services

2.1 The exact scope of the Contractor’s services is specified in the respective SLA with the Client. Unless otherwise agreed, the Contractor shall perform the services during the normal business hours of the Contractor in accordance with the SLA. The Contractor shall ensure the provision and availability of the Services in accordance with the respective SLA.

2.2 The facilities and technology used by the Contractor for the performance of the Services shall be based on the qualitative and quantitative performance requirements of the Client as determined on the basis of the information provided by the Client. If new requirements of the Principal make it necessary to change the Services or the technology used, the Contractor shall submit a corresponding offer at the Principal’s request.

2.3 The contractor is entitled to change the equipment used to provide the services at his own discretion if no impairment of the services is to be expected.

2.4 Services rendered by the Contractor which the Customer makes use of beyond the scope of services agreed in each case shall be remunerated by the Customer according to actual personnel and material expenses at the rates applicable to the Contractor in each case. This includes in particular services outside the normal business hours of the contractor, the analysis and elimination of disturbances and errors which have arisen due to improper handling or operation by the customer or other circumstances for which the contractor is not responsible. Likewise, training services are not included in the services and require a separate agreement.

2.5 Insofar as the Contractor procures third-party services at the Client’s request, these contracts shall be concluded exclusively between the Client and the third party under the respective terms and conditions of the third party. The contractor is only responsible for the services provided by himself.

 

  1. Obligations of the customer to cooperate and to provide

3.1 The Principal undertakes to support all measures necessary for the provision of the Services by the Contractor. The Client further undertakes to take all measures which are necessary for the performance of the agreement and which are not included in the scope of performance of the Contractor.

3.2 If the services are performed on site at the Customer’s premises, the Customer shall make available free of charge the network components, connections, supply current including peak voltage compensation, emergency power supplies, storage space for systems, workplaces and infrastructure to the required extent and quality (e.g. air conditioning) required for the performance of the services by the Contractor. In any case, the customer is responsible for compliance with the requirements of the respective manufacturer for the operation of the hardware. The customer shall also ensure room and building security, including protection against water, fire and access by unauthorized persons. The client is responsible for special security precautions (e.g. security cells) in his premises. The Customer shall not be entitled to issue instructions of any kind to the Contractor’s employees and shall forward all requests regarding the provision of services exclusively to the contact named by the Contractor.

3.3 The Customer shall provide all information, data and documents required by the Contractor for the execution of the order in the form required by the Contractor on the agreed dates and at its own expense and shall support the Contractor upon request in problem analysis and fault rectification, the coordination of processing orders and the coordination of services. Changes in the Client’s work processes which may cause changes in the services to be rendered by the Contractor for the Client shall require prior agreement with the Contractor with regard to their technical and commercial effects.

3.4 Insofar as this is not expressly included in the scope of services by the Contractor, the Customer shall provide a network connection at its own risk and expense.

3.5 The Customer is obliged to treat the passwords and log-ins required by the Contractor for the use of the services confidentially.

3.6 In addition, the Customer shall keep the data and information provided to the Contractor on his premises so that they can be reconstructed at any time in the event of loss or damage.

3.7 The Customer shall perform all its obligations to cooperate in a timely manner so that the Contractor is not hindered in the performance of the services. The Client shall ensure that the Contractor and/or the third parties commissioned by the Contractor have the necessary access to the premises of the Client for the provision of the services. The Customer shall be responsible for ensuring that the employees of its affiliated companies or third parties commissioned by it who are involved in the performance of the contract participate accordingly in the performance of the contract.

3.8 If the Principal fails to fulfill his obligations to cooperate on the agreed dates or to the intended extent, the services rendered by the Contractor shall nevertheless be deemed to have been rendered in conformity with the contract despite possible restrictions. Schedules for the services to be rendered by the contractor shall be postponed to a reasonable extent. The Customer shall pay separately for the additional expenses and/or costs incurred by the Contractor as a result thereof at the rates applicable to the Contractor in each case.

3.9 The Customer shall ensure that its employees and the third parties attributable to it carefully handle the equipment and technologies used by the Contractor as well as any assets entrusted to it; the Customer shall be liable to the Contractor for any damage.

3.10 Unless otherwise agreed, the Customer shall provide and cooperate free of charge.

 

  1. contract changes

Both contracting parties may demand changes to the scope of services at any time. However, a desired change must include a precise description of the change, the reasons for the change, the impact on timing and the costs in order to give the addressee of the change request the opportunity to make an appropriate assessment. A change request only becomes binding upon the legally valid signature of both contracting parties.

 

  1. Performance disturbances

5.1 The contractor undertakes to provide the services in accordance with the contract. If the Contractor does not perform the services at the scheduled times or only performs them inadequately, i.e. with significant deviations from the agreed quality standards, the Contractor shall be obliged to begin remedying the defects immediately and to perform its services properly and free of defects within a reasonable period by, at its option, repeating the affected services or carrying out necessary remedial work.

5.2 If the defect is based on provisions or cooperation of the customer or on a breach of the obligations of the customer according to point 3.9, any obligation to remedy the defect free of charge shall be excluded. In such cases, the services provided by the contractor shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions. At the Customer’s request, the Contractor shall remedy the defect at the Customer’s expense.

5.3 The Customer shall support the Contractor in remedying the defects and provide all necessary information. The Customer shall immediately notify the Contractor of any defects that occur in writing or by e-mail. The Customer shall bear the additional costs incurred in rectifying the defect as a result of late notification.

5.4 The provisions of this point shall apply mutatis mutandis to any deliveries of hardware or software products from the contractor to the customer. The warranty period for such deliveries shall be 6 months from delivery. § 924 ABGB “Presumption of Defectiveness” is excluded by mutual agreement. For any hardware or software products of third parties provided to the Customer by the Contractor, the respective warranty conditions of the manufacturer of such products shall prevail over the provisions of this point. Until payment has been made in full, the contractor retains title to all hardware and software products supplied by him.

 

  1. Contractual penalty

The Contractor shall be obliged to comply with the degrees of performance or recovery times specified in the SLA according to priorities. If the Contractor exceeds the time limits specified in the SLA for the restoration, the Contractor shall pay penalties to the Customer in accordance with the SLA for each hour or part thereof of the excess until the actual restoration (fulfillment): The above-mentioned penalties per year are limited to 20% of the total annual fee. The assertion of a claim for damages in excess of this, unless in the case of intent or gross negligence, is excluded. If penalties are exceeded, the Contractor must be notified immediately in writing.

 

  1. Liability

7.1 The contractor shall only be liable to the client for damage demonstrably caused by him in the event of gross negligence. This shall also apply mutatis mutandis to damages caused by third parties called in by the contractor. In the case of culpable personal injury, the contractor shall be liable without limitation.

7.2 Liability for indirect damages – such as loss of profit, costs associated with a business interruption, loss of data or claims by third parties – is expressly excluded.

7.3 Claims for damages shall become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the injuring party.

7.4 If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this connection, the Contractor shall assign these claims to the Customer. In this case, the Customer shall give priority to these third parties.

7.5 If data backup has been expressly agreed as a service, liability for the loss of data is not excluded in deviation from Item 8.2, but for the restoration of data is limited to a maximum of EUR 10 % of the order amount per case of damage, but to a maximum of EUR 15,000. Warranty claims and claims for damages of the customer beyond those specified in this contract – irrespective of the legal basis – are excluded.

 

  1. Payment

8.1 The remuneration and conditions to be paid by the client result from the contract. The statutory value added tax shall be charged additionally.

8.2 Travel times of the Contractor’s employees shall be regarded as working time. Travel time shall be reimbursed at the agreed hourly rate. The rates stated shall change in accordance with the price escalation clause in Item 9.5. In addition, travel costs and any overnight accommodation costs shall be reimbursed by the Client on the basis of actual expenditure. Travel and incidental expenses shall be reimbursed upon presentation of the receipts (copies).

8.3 The contractor is entitled at any time to make the provision of services dependent on the payment of down payments or the provision of other securities by the client in an appropriate amount.

8.4 Unless otherwise contractually agreed, one-off payments shall be invoiced after performance of the service, ongoing payments shall be invoiced quarterly in advance. The invoices submitted by the contractor, including value-added tax, are payable no later than 14 days after receipt of the invoice without any deduction and free of charges. For partial invoices, the terms of payment stipulated for the entire order shall apply analogously. A payment shall be deemed to have been made on the day on which the contractor can dispose of it. If the Customer is in default with his payments, the Contractor shall be entitled to charge the statutory interest on arrears and all costs necessary to make collection possible. If the Customer’s default exceeds 14 days, the Contractor shall be entitled to suspend all services. In addition, the Contractor shall be entitled to demand immediate payment for all services already rendered, irrespective of any payment deadlines.

8.5 Current remuneration is based on the collective contract salary of an employee of companies in the field of services in automatic data processing and information technology at the experience level for special activities (ST2).

8.6 The Customer shall only be entitled to set off a counterclaim with a counterclaim recognized by the Contractor or legally established. The customer is not entitled to a right of retention.

8.7 All tax debts arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the customer. Should the contractor be held liable for such levies, the client shall indemnify and hold the contractor harmless.

 

  1. Force majeure

If and as long as obligations due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of power supply, failure of means of transport, failure of telecommunication networks or data lines, changes in laws affecting the services after conclusion of the contract or other non-availability of products cannot be fulfilled in due time or not properly, this shall not constitute a breach of contract.

 

  1. Rights of use to software products and documents

10.1 Insofar as the Contractor provides the Customer with software products or enables the Customer to use software products within the scope of the services, the Customer shall have the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unchanged form.

10.2 If software products are used in a network, a license is required for each simultaneous user. When using software products on “stand-alone PCs”, a license is required for each PC.

10.3 For third-party software products provided to the Customer by the Contractor, the respective license terms of the manufacturer of such software products shall prevail over the provisions of this clause.

10.4 Unless a separate agreement has been made, no further rights to software products shall be transferred to the Customer. The rights of the customer according to §§ 40(d), 40(e) UrhG are not affected by this.

10.5 All documents provided to the Customer by the Contractor, in particular the documentation on software products, may neither be duplicated nor distributed in any way, whether for consideration or free of charge.

 

  1. Term of the contract

11.1 The contract shall enter into force upon signature by both contracting parties and shall run for an indefinite period. The contract may be terminated by either party by giving 6 months’ notice, but no earlier than the end of the minimum term agreed in the contract, by sending a registered letter or e-mail to support@kd-hosting.de .

11.2 Each contracting party is entitled to terminate the contract prematurely and without notice for good cause by registered letter or e-mail. An important reason exists in particular if the respective other contractual partner violates essential obligations from the contract despite written warning and threat of termination or if bankruptcy or other insolvency proceedings are applied for against the other contractual partner, opened or rejected due to lack of assets or if the services of the other contractual partner are hindered or prevented for a period of more than six months as a result of force majeure.

11.3 In addition, the Contractor shall be entitled to terminate the contract prematurely for good cause if essential parameters of the performance of the services have changed and the Contractor can therefore no longer be expected to continue the services from an economic point of view.

11.4 Upon termination of the contract, the Customer shall immediately return to the Contractor all documents and documentation provided by the Contractor.

11.5 Upon request, the Contractor shall support the Client at the end of the contract in returning the services to the Client or a third party designated by the Client at the hourly rates applicable to the Contractor.

 

  1. Data protection and privacy

12.1 When handling personal data, the Contractor shall observe the provisions of the Data Protection Act and the Telecommunications Act and take the technical and organisational measures necessary for data protection in the area of responsibility of the Contractor. In particular, the Contractor undertakes its employees to comply with the provisions of § 15 of the Data Protection Act.

12.2 The Contractor shall not be obliged to check the permissibility of the data processing operations commissioned by the Customer within the meaning of data protection regulations. The permissibility of the transfer of personal data to the Contractor as well as the processing of such data by the Contractor shall be ensured by the Customer.

12.3 The Contractor shall take all reasonable measures to protect the Customer’s data and information stored at the Contractor’s locations against unauthorised access by third parties. However, the Contractor shall not be responsible if third parties nevertheless manage to gain access to the data and information in an unlawful manner.

12.4 With the conclusion of the contract, the client gives his consent that the data from this business case may also be transmitted to subcontractors who are involved in the processing of this order.

 

  1. Secrecy

13.1 Each Party warrants to the other that it will treat as such all trade secrets brought to its knowledge by the other party in connection with this Agreement and its performance and will not make them accessible to third parties unless they are generally known, or the Recipient was previously aware of them without an obligation to maintain secrecy, or the Recipient has been notified or surrendered them by a third party without an obligation to maintain secrecy, or they have been demonstrably developed independently by the Recipient, or they are to be disclosed on the basis of a legally binding official or judicial decision.

13.2 The subcontractors associated with the Contractor shall not be deemed to be third parties insofar as they are subject to a confidentiality obligation corresponding to the content of this point.

 

  1. Warranty

14.1 The Contractor guarantees the Customer an availability of 99.0 % on an annual average. The router that connects the computer center to the Internet (handover point) shall be decisive for availability. The guarantee of availability does not apply to malfunctions within the Internet or to downtime that are beyond the control of the contractor (e.g. force mature). In addition, the Contractor shall be entitled to use up to 1% of the availability per month for maintenance work, without this being regarded as a reduction in availability. Such maintenance work shall be announced to the Customer in advance if possible and shall be carried out at night between 10 p.m. and 5 a.m. The Customer shall be entitled to use up to 1 % of the availability for maintenance work monthly, without this reducing availability.

14.2 The Principal is aware that the Contractor only forwards the data for the registration of a domain to the responsible registry on behalf of the Principal. The forwarding is carried out in a manual procedure, whereby the Contractor has no influence on whether the domain is ultimately assigned to the Customer. In this respect, the Contractor does not guarantee the allocation of an ordered domain. The same applies to the existence of a domain, insofar as this is not within the sphere of influence of the contractor.

14.3 Otherwise, the statutory provisions shall apply. The limitation of liability pursuant to § 7 shall apply in addition to liability for defects for damages.

 

  1. Alternative dispute resolution

The European Commission provides a platform for out-of-court online settlement of disputes (the so-called OS platform) under http://ec.europa.eu/consumers/odr/ We would like to point out that we do not participate in a dispute resolution procedure before a consumer dispute arbitration body.

 

  1. Other

16.1 The contracting parties shall name in the contract competent and knowledgeable employees who can make or initiate the necessary decisions.

16.2 During the term of the contract and up to one year after the end of the contract, the Customer shall not entice away any employees employed by the Contractor to provide the services, either itself or through third parties. The Customer undertakes to pay to the Contractor a contractual penalty in the amount of twelve times the gross monthly salary that the employee concerned last received from the Contractor, but at least the collective contractual salary of an employee of companies in the field of services in automatic data processing and information technology in the experience level for special activities (ST2).

16.3 Amendments and supplements to the contract must be made in writing. This also applies to the cancellation of this formal requirement.

16.4 Should one or more provisions of the contract be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a valid provision which comes as close as possible to the economic purpose of the invalid or unenforceable provision.

16.5 Any disposal of the rights or obligations existing on the basis of the contract requires the prior written consent of the other party to the contract. However, the contractor shall be entitled to transfer the contract to a company affiliated with the contractor under group law even without the consent of the client.

16.6 The Contractor shall be entitled to use third parties in whole or in part to fulfill its obligations.

16.7 Unless otherwise agreed, the statutory provisions applicable between fully qualified merchants shall apply exclusively under Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the Contractor’s place of business shall apply exclusively.

 

 

Release date: 02/2018
Version: 1.0

Alternative Dispute Resolution in accordance with Art. 14 (1) ODR-VO and § 36 VSBG:

Die Europäische Kommission stellt eine Plattform zur Online-Streitbeilegung (OS) bereit, die du unter https://ec.europa.eu/consumers/odr findest. Wir sind bereit, an einem außergerichtlichen Schlichtungsverfahren teilzunehmen.