General Terms and Conditions of Contract
Last update: August 2018
The following Terms & Conditions of Contract (hereinafter referred to as “T&Cs”) shall regulate the trustworthy and efficient collaboration between
the headquarters and branch office in Austria:
CEO: Harald Grabner
1220 Vienna, Austria
the branch office in Germany:
10117 Berlin, Germany
and its customers. The T&Cs contain regulations related to industry-specific issues, such as regulations on rights of use, order processing and acceptance of our services. For further information, feel free to contact us.
TABLE OF CONTENTS
A. Scope of application, definitions and fundamentals of the T&Cs
B. Agency, development, maintenance and consulting services
C. Search engine optimisation
D. Training, workshops and speakers
E. Webhosting, domains and certificates
F. Ownership and rights of use
G. Warranty and liability
H. Remuneration and invoicing
I. Contract duration and termination
J. Data protection, confidentiality, changes of the T&Cs and final provisions
A. SCOPE OF APPLICATION; DEFINITIONS AND FUNDAMENTALS OF THE T&CS
1. General provisions and scope of application of the T&Cs
1.1. These T&Cs are applicable to all contracts concluded between 123CONSULTING and the customer, even if the T&Cs are not expressly agreed with regard to a specific service. These T&Cs apply also to follow-up orders of similar nature arising in the context of a continuous and intended business relationship.
The T&Cs apply in the version valid at the time of the conclusion of the contract.
Any individual agreement of the contracting parties deviating from these T&Cs will be subject to these T&Cs, unless previously agreed upon in written form. This also applies to the cancellation of the written form.
Performance specifications, price lists, tariffs, technical specifications, legal and other special indications, if provided, are part of the contract and shall prevail over these T&Cs.
Provided that special provisions within the context of these T&Cs contradict the general provisions, special provisions shall prevail.
Deviating terms and conditions of the customer shall only apply if 123CONSULTING has expressly agreed upon them in written form. Failure to reject contradictory terms and conditions of the customer – even if they have been communicated and if the service is in course of execution – does not constitute consent.
1.7. 123CONSULTING is entitled to agree upon additional conditions for additional and separate services. The additional conditions shall be made clearly visible to the customer. If the additional terms contradict these T&Cs, the additional terms shall prevail.
2. Terms used in the T&Cs
Software – “Software” refers to executable programs as well as functions, data and design elements related to them. In the context of these T&Cs, software also refers to application programs, applications (mobile, Web, AR, VR, Smart TV/Speaker) and Internet presences (websites, landing pages, online shops) and database systems.
Continuing obligation contracts – These are contracts that are concluded after a specific or indefinite period, e.g. upkeep and maintenance contracts.
Contracting parties – The term refers to both the customer and 123CONSULTING.
Work – “Work” refers to the result of the performance of 123CONSULTING, in particular the content or software created within the framework of these T&Cs.
Content– The term “content” refers to all kind of content and information, such as photographs, graphics, logos, videos, texts, source codes, advertising material, data, information about places and persons or links.
Online accounts – The term encompasses in a broader sense all online accounts, profiles, websites, other online presence, etc., as well as content and contacts related to them.
Training – The term “training” includes training at 123CONSULTING or at the customer, lectures, workshops, seminars and similar events.
Speaker – Speaker is the person who conducts training on behalf of 123CONSULTING.
3. Offers and their period of validity
Descriptions and presentations on websites, brochures, etc. do not constitute binding offers.
The offers of 123CONSULTING are not binding. 123CONSULTING reserves the right to accept or decline an order.
Contract requests (including inquiries on orders as well as other services) to 123CONSULTING, only establish a contractual relationship with 123CONSULTING from the moment of their acceptance. 123CONSULTING reserves the right to refuse contract requests.
Unless otherwise specified, offers by 123CONSULTING are valid for 30 days.
4. Conclusion of the contract
Unless otherwise expressly agreed and insofar as the offer is submitted by a customer, a contract come into effect with the confirmation in writing or by e-mail from 123CONSULTING or with the execution of the service described in the contract. If 123CONSULTING places an offer, the contract is concluded with the acceptance of the customer by considering these T&Cs.
If advertising and other types of agencies (hereinafter referred to as “advertising agency”) place orders, in case of doubt and unless agreed otherwise in written form, the contract is concluded with the advertising agency. Should a third party become one of the contractors, this must be named by the advertising agency and declared as such. 123CONSULTING is entitled to request proof of mandate from the advertising agency.
5. Change requests and other later changes
Should the customer wish to change the agreed services during the course of the contract, or the circumstances or technical requirements declared by the customer change after the placement of an offer by 123CONSULTING or after the conclusion of the contract (e.g. changes to operating systems or browsers), 123CONSULTING can place an offer for the increase or reduction of costs, unless a remuneration according to expenditure has been agreed upon or the customer expressly rejects a separate offer.
Until the customer decides whether or not to accept the offer and if the delayed acceptance of the offer by the customer results in additional expenses, 123CONSULTING pauses work on the services related to the offer. Agreed delivery deadlines will be extended accordingly.
6. Project staff, place and time of contract fulfilment
123 CONSULTING is not bound to any specific time or place in the execution of each individual order.
To fulfil its contractual obligations, 123 CONSULTING has the right to use subcontractors provided that it does not conflict with any contractual obligations, in particular the obligation to provide services directly through 123CONSULTING (for example due to its expertise) or the obligation of confidentiality and data protection.
Should the contracting parties nominate employees as project staff, contact person or similar, these may be substituted with employees with comparable qualifications and experience. The purpose of the contract may not be endangered by the substitution. The contractual partners inform themselves in advance about the exchange of employees.
The employees of 123 CONSULTING do not enter into an employment relationship with the customer. The customer shall issue instructions exclusively to a responsible employee designated by 123 CONSULTING with effects for and against 123CONSULTING.
7. Deadlines and dates
Deadlines and dates are binding only if 123CONSULTING sets explicitly a deadline or a date or explicitly agrees to one in written form (e.g. e-mail, fax, letter).
In case of performance delays due to force majeure or circumstances within the scope of the customer (e.g. delayed delivery of content, etc.), 123CONSULTING cannot be held responsible. In addition, 123CONSULTING is entitled to postpone the delivery of the services affected by such delay for the duration of the disruption/delay plus a reasonable period of time.
B. AGENCY, DEVELOPMENT, MAINTENANCE AND CONSULTING SERVICES
8. Order description
The services offered by 123CONSULTING include consulting, planning, design, development and management of online presences and other agency services. The concrete specifications of the respective contractual service, its scope, areas of application, general conditions, functions, documentation as well as the time and schedule are based on the order description underlying the respective service.
There are no specifications for the description of the service commissioned. This can occur, for example, in the form of an offer, a description of an order, a product requirement document or duties record book. The order description must have a sufficient level of detail customary for the respective field/industry. The customer will inform 123CONSULTING immediately about any missing detail and assist 123CONSULTING to the best of his/her ability in providing the required information and details.
Should the order description be inadequate or in certain cases questionable, the work to be performed will include the customary tasks in the field necessary to fulfil the agreed purpose of the contract.
In order to be effective, later changes to the order description require explicit acceptance of the relevant contractor.
If the contractual services serve the achievement of a concrete success agreed upon in written form (e.g. production of a specific work, achievement of pre-determined performance figures), this will be a work contract (Werkvertrag). Otherwise, in case of doubt, it will be a service contract (Dienstvertrag).
Training of users, documentation, reports, briefing, installation and maintenance are not subsidiary components of the services provided by 123CONSULTING and must be agreed upon separately.
9. Maintenance and service
The basic ongoing maintenance and service do not include consulting and development services unless expressly agreed (e.g. in the order description). For these services, a separate agreement must be concluded. I.e. without an explicit agreement, no services going beyond the maintenance of the functionality of the item to be serviced (e.g. software) are included. For example, also changes in the range of functions, other areas of use or individual adjustments in terms of optical or content terms are not included.
Ongoing maintenance and services also do not include adjustments due to technical changes implying that essential functions or interfaces of the object to be serviced must be substantially recreated. In particular, this includes unforeseeable changes made by the customer or third parties when the contract is concluded to the object to be maintained.
For scheduled work a suitable date should be found together with sufficient advance, so that the availability of the system will be restricted for a limited period of time. The execution of scheduled work is agreed with the customer with a lead time of 3 working days (Monday to Friday). Scheduled work includes maintenance and other activities that are known in advance and are not time critical; however, the product to be serviced may be limited or not available to the customer for a certain period of time.
10. Collaboration and cooperation duties
The contracting parties work together in a trustworthy manner and, in the case of deviations from the agreed procedure or doubts, immediately inform each other of the correctness of the other party’s approach.
The customer is obligated to support 123CONSULTING in the execution of the contractually due services. In particular, this includes the timely provision of information and data insofar as the obligation to cooperation of the customer requires it.
10.3. To the extent necessary for the provision of services by 123CONSULTING, (i) the customer shall provide the technical facilities (not to be provided by 123CONSULTING) such as hardware or data transmission lines and shall make them available to a reasonable extent free of charge; (ii) the customer shall provide the access data; (iii) the customer shall support 123CONSULTING during test runs and acceptance tests with the suitable staff.
The cooperation and other provisions of the customer are free of charge for 123CONSULTING.
If 123CONSULTING cannot provide the services due to missing or inadequate cooperation or failure to provide the necessary instruments and/or information, or only with additional expenses, 123CONSULTING is entitled to charge additional expenses to the customer.
The contracting parties and their contact persons shall inform each other at regular intervals on progress and obstacles encountered during the execution of the contract. These intervals shall be determined jointly, so as to be able to intervene in the execution of the contract if necessary.
If the customer recognises that his/her own information and demands are faulty, incomplete, ambiguous or impracticable, he/she must immediately notify 123CONSULTING about the issue and the implications clearly recognisable to him/her.
10.8. The communication between 123CONSULTING and the customer should be as effective as possible, i.e. fast and resistant to error. In this context, the customer must observe any formal communication requirement, provided this has been communicated to him/her or is otherwise known, is reachable and its understanding is reasonable for the customer. This includes, in particular with regard to the use of ticketing systems, an adequate description of problems, symptoms, technical faults, etc. Should the customer not conform to the formal communication requirements, rights and obligations of the customer towards 123CONSULTING shall not arise.
11. Exclusion of legal assessment, consultancy and cooperation obligations
The services of 123CONSULTING do not include, unless otherwise explicitly agreed, legal assessment or legal consultancy (for example, trademark, copyright, data protection or competition law) and/or fulfilment of statutory information duties of the customer (e.g. provider identification, data protection declaration, consumer information for distance selling contracts, assessment and monitoring in installing links, monitoring obligations for the content of forum discussions, blogs and chat rooms, obligations to observe media law regulations, in particular regulations for the protection of children and adolescents, etc.).
With regard to the collaboration with influencers (i.e. advocates, testimonials, bloggers, YouTubers, Instagramers, etc.), 123CONSULTING informs the customer that influencers are required by a variety of laws to indicate the promotional background of their posts. In the event of a breach of the labelling obligation, not only the influencer but also 123CONSULTING or the customer can be held liable regardless of their culpability. There is also the risk of incurring in fines. For this reason, 123CONSULTING recommends to the customer a legally secure way of labelling and to ensure that the influencers will comply with it. If the customer desires a labelling system that deviates from the recommendations of 123CONSULTING, the customer shall be held liable for any resulting disadvantages and costs incurred by 123CONSULTING or influencers and exempts 123CONSULTING and the influencers from third-party claims. The disadvantages and costs include, among others, costs of legal advice, additional time expenditure, any fines and costs of legal proceedings, provided that legal proceedings are taken on reasonable legal and economic grounds. In such cases, 123CONSULTING and the customer shall agree upon the procedure.
In case of legitimate doubts about the lawfulness of a measure, 123CONSULTING may request approval from the customer and postpone the implementation of the measure until it has been granted.
The customer exempts 123CONSULTING from all claims and damages that 123CONSULTING suffers due to violations attributable to the customer.
12. Provision of content
The customer is obligated to deliver appropriate content, in particular according to the format or technical specifications of 123CONSULTING. Furthermore, content has to be provided in due time prior to the start of their use (e.g. as advertising material for placement in websites etc.) or at the agreed date and time. The customer bears the costs and the risks of the delivery/transmission.
The customer must deliver the content free from malicious codes and/or other sources of damage. For this purpose, he/she is particularly obligated to use commercial protection programs, which must always comply with the latest technology. In the case of existence and identification of a source of damage of any kind in a transmitted file, 123CONSULTING will not make use of this file and delete it insofar as necessary to avoid or limit the damage. In this context, the customer will not have the right to advance any damage claims. 123CONSULTING reserves the right to claim damages from the customer if damage has been caused by such sources of damage infiltrated by the customer.
These acceptance regulations are applicable only if they are based on a work contract (Werkvertrag).
The subject-matter of the acceptance is the contractually due performance in accordance with the order description.
Prerequisite for the acceptance is that 123CONSULTING delivers the entire outcome of the performance to the customer and indicates its readiness for acceptance. The delivery of all performance results necessary for the acceptance constitutes a request for acceptance.
After that, the customer has 7 working days (Monday to Friday) to begin with the acceptance testing.
Should the acceptance fail, the customer delivers to 123CONSULTING a list of all defects preventing the acceptance. After expiry of a suitable deadline, 123CONSULTING shall provide a flawless and acceptable version of the contractually agreed service. In the subsequent test, only the recorded defects are examined insofar as they can be subject to an isolated test depending on the functions involved.
After successful testing, the customer shall declare in written form (e-mail is sufficient) the acceptance of the resulting work within 7 working days (Monday to Friday).
The performance results shall be deemed to have been accepted by the customer with the expiration of 2 weeks after submission for acceptance, unless material defects have previously been reported.
The customer may not refuse the acceptance due to insignificant defects. These defects must be listed individually in the acceptance report.
Die Erstellung der vertraglichen Leistungen kann in einzelnen Teilabschnitten vereinbart werden. 123CONSULTING ist berechtigt den Kunden zu einer Teil- oder Zwischenabnahme aufzufordern, wenn dies aufgrund der Materie, des Umfangs oder des zeitlichen Ablaufs bei der Leistungserbringung sachlich begründet und für den Kunden zumutbar ist.
The regulations for acceptance, warranty and compensation apply to the individual sections. In particular, this means that change requests on behalf of the customer – stemming from individual sections of work already delivered – shall be remunerated separately.
14. Service and invoicing in outline agreements
Should an outline agreement (Rahmenvertrag) have been agreed between the customer and 123CONSULTING, and 123CONSULTING is commissioned by the customer with single services and tasks within the scope of the outline agreement, or if the customer otherwise accepts the services of 123CONSULTING, e.g. with the preparation of quotes or handling, etc. (summarised “service request”), in these cases, the above-mentioned service request will constitute a separate order.
On the contrary, the service request does not constitute a separate order if it is part of a coherent project for which a separate acceptance or partial acceptance has been agreed as described in clause 13 of these T&Cs.
15. Media placement and cancellation
Commissioning 123CONSULTING with media placements (e.g. placement of advertisements and similar marketing activities in online and offline media) establishes a legally binding contract based on the agreed duration and budget of the media placement.
Unless explicitly excluded, the customer may terminate the contract on media placement at any time, unless the media placement has already been executed. The entire contract may be terminated or only parts of it by considering the amount of the budget or the coverage of the media placement. With the cancellation, 123CONSULTING’s entitlement to remuneration of 123CONSULTING from the customer for the execution of the media placement becomes, as whole or partially, invalid. 123CONSULTING is entitled to reimbursement for the internal costs incurred and for services already provided related to the media placement. The reimbursement to which 123CONSULTING is entitled to is determined as a flat rate with a percentage of the agreed remuneration for the terminated part of the media placement, depending on the termination date (cancellation fee). Unless otherwise agreed, in the case of partial termination, the relevant fee is determined on the basis of the terminated budget in comparison to the originally agreed media budget.
Commissioning 123CONSULTING with media placements (e.g. placement of advertisements and similar marketing activities in online and offline media) establishes a legally binding contract based on the agreed duration and budget of the media placement.
In case of cancellation one week before the planned media placement, the payment agreed shall be paid in full to 123CONSULTING.
If 123CONSULTING has already received a payment from the customer in order to cover the expenses of media providers for the services, 123CONSULTING will refund such payment to the customer. 123CONSULTING cannot be held responsible if the media provider refuses to refund any fees paid in advance as agreed in the contract. However, 123CONSULTING supports the customer to a reasonable extent in the retrieval and enforcement of the fees, whereby the customer has to bear the costs of any legal action.
C. SEARCH ENGINE OPTIMISATION
16. Scope and conditions of service for search engine optimisation
The following conditions apply for services of 123CONSULTING in the area of search engine optimisation (hereinafter referred to as “SEO”) as well as for other similar services and shall prevail over other regulations.
Subject to individual agreements, SEO services refer to the following scope of service:
– 123 CONSULTING offers its optimisation services on webpages provided by the customer (hereinafter referred to as “on-site optimisation”) as well as outside the webpages of the customer (hereinafter referred to as “off-site optimisation”).
– Within the framework of on-site optimisation, 123CONSULTING optimises the websites agreed with the customer on the basis of search terms and search criteria specified by the customer (hereinafter referred to as “keywords”). This is done with the purpose of achieving a better position on the agreed upon search results pages of search and directory providers.
– Off-site optimisation is achieved in particular through the insertion of cross-references to the websites agreed upon with the customer (hereinafter referred to as “backlinks”). Backlinks are constituted by single words or a combination of words and can be placed manually or through an application. 123CONSULTING choses at its discretion the websites where backlinks will be placed, the words to be used as well as the duration of the placement.
– The off-site optimisation can occur through the production of articles and contributions in websites, journal blogs or web catalogues with free access (hereinafter referred to as “platforms”).
– Should 123CONSULTING offer editorial content on its own website or those of its partners, the customer has the right to insert a backlink. 123CONSULTING or its partners can determine freely the content and length of the editorial content.
For SEO services the following warranty conditions apply:
– 123CONSULTING informs the customer that articles and contributions written on platforms of third parties can be deleted by the platform provider at any time without providing any reason. For this reason, 123CONSUTLTING cannot guarantee that such articles and comments will be available at all times and/or in the long-term. The regular verification of published articles and contributions requires a separate agreement between 123CONSULTING and the customer.
– 123CONSULTING informs that it does not have any influence on search service operators such as Google. The latter can modify the search algorithm in use at any time and without prior notice. Unless otherwise agreed, 123CONSULTING does not guarantee that a particular page will, at any time, reach and retain a certain position or value in the search results.
– Unless otherwise agreed, it cannot be guaranteed that the optimisation will lead to the desired results and/or such results will be visible at a specific point in time.
– Defects of the services provided by 123CONSULTING are immediately notified by the customer by means of a detailed description of the defect. 123CONSULTING is then entitled to rectification. This takes place during the off-site optimisation by resetting the backlinks and during on-site optimisation by re-analysing and, if necessary, by modifying the website of the customer. Unless there are special circumstances requiring an immediate termination of the contractual relationship, the customer grants 123CONSULTING three attempts of rectification.
The customer does not hold any exclusivity right for keywords. 123CONSULTING has the right to support other customers from the same sector by using similar or the same keywords as well as to install on such customers’ websites backlinks to the same websites, insofar as their interests are equally respected and not affected.
D. TRAINING, WORKSHOPS AND SPEAKERS
17.Content and structure of training and technology
Content and structure of training are agreed upon separately between 123CONSULTING and the customer. This does not apply to training pre-designed in terms of content (e.g. in the case of seminars or webinars offered by 123CONSULTING).
123CONSULTING is entitled to make necessary changes in content, methodology and structure before or during the course of the training session, as long as these either increase or do not change significantly the benefits of the announced training for the participant.
The content and documents provided for the training are prepared to the best of knowledge and ability of 123CONSULTING. A liability and guarantee for the correctness, up-to-dateness, completeness and quality of the content is however excluded.
The technical requirements necessary for training (e.g. computers) are provided by the customer, unless otherwise agreed.
18. Training documents and recording
The provision of documents to the participants of the training in digital format (PDF) as well as their placement online is admissible only with the explicit consent of 123CONSULTING. In principle, the provision of training documents is admissible only in print form, unless also the permission to provide digital copies has been granted. The provision of documents in digital format can only occur in the form of protected files (print, export and copy functions are protected with a password or excluded).
Audio or video recording of training sessions is permitted only with the consent of 123CONSULTING.
19. Cancellation fees
In case of cancellation, the following cancellation fees will be charged: 50% of the training fee from 2 weeks before the training session and 100% of the training fee from one week before the training session.
Should the customer request services (e.g. advertising activities, preparation of documents) prior to the period of 2 weeks before the training date, in the event of cancellation, these expenses will be charged at the hourly rate of 123CONSULTING in accordance with point number 44 “Remuneration” of these T&Cs.
Should the training session be cancelled due to force majeure, no cancellation fee will be charged.
20. Organisation of training
The following regulations under point number 20 apply if the training sessions are organised by 123CONSULTING.
Registrations to training sessions organised by 123CONSULTING will be considered according to the sequence in which they are received.
The registration constitutes a binding offer to participate to the training session and shall be deemed as accepted once the payment has been completed. This applies in the case of the payment of an invoice or in the case of a payment through an online system, e.g. PayPal. With the payment, the customer receives a legal entitlement to participate at the training session agreed and a registration confirmation.
In the event of cancellation, 123CONSULTING reserves the right to accept other participants as substitutes. In this context, the suitability of the substitute participant for the training session will be considered.
21. Postponement, cancellation and substitution of speakers
Should the planned speaker be unable to participate, in particular due to illness, a suitable expert may be selected as a substitute.
In exceptional cases, even after the registration has been confirmed, training sessions may be postponed or cancelled due to sudden illness of the speaker or due to force majeure or due to the low number of participants.
In the case of a low number of participants, the training session shall be cancelled one week prior the event date at the latest. In this case, 123CONSULTING cannot be held responsible.
In the case of cancellation or unreasonable postponement of the training session for the customer, 123CONSULTING will reimburse any fee already paid.
21.5. The right for compensation of further costs of the customer (e.g. refund of travel and accommodation costs as well as loss of work) exists only in case of culpability of 123CONSULTING. Should the training session be cancelled due to force majeure, e.g. if the speaker is impeded due to force majeure, 123CONSULTING cannot be held liable for the resulting additional costs of the customer.
22. Travel expenses for training services
Travel expenses include the journey to and from the training facilities (to be calculated in accordance with point number 44 “Reimbursement” of these T&Cs) as well as hotel overnight stays (minimum 3 stars including breakfast).
Overnight stay in a hotel is necessary if the arrival/departure on the same day is not possible or would have to take place before 8 a.m.
Travel and overnight stay expenses will be calculated in accordance with the reimbursement regulations in these T&Cs.
Who organises inbound and outbound journey and whether the expenses shall be borne by 123CONSULTING shall be clarified and agreed when concluding the contract. The customer may agree to pay the aforementioned expenses himself/herself.
If travel expenses are not settled in advance by the customer, 123CONSULTING will debit these to the customer after confirmation of the training date or 7 days before the training date at the latest. 123CONSULTING informs that the closer the booking is to the training date, the higher the cost may be and asks for timely confirmation of the training date. In the case of cancellation, incurred travel expenses are to be refunded, unless the booking is non-refundable.
E. WEBHOSTING, DOMAINS AND CERTIFICATES
23. Webhosting and server
23.1. 123CONSULTING provides the customer with storage space on a web server and database in accordance with the respective service description of the selected tariff. The customer shares the physical servers with other customers of 123CONSULTING, unless a physically separate hosting has been agreed.
Insofar as a specific storage capacity is mentioned in the respective service description of the selected tariff, this applies to the entire storage space of the server. This is made available according to the service description, and also serves, inter alia, for the storage of databases, log files etc.
Der Kunde hat weder dingliche Rechte an den Servern, die seine Leistungen bereitstellen und vorbehaltlich anderslautender Vereinbarungen, insbesondere in Auftragsverarbeitungsverträgen, kein Recht auf Zutritt zu den Räumlichkeiten, in denen sich die Server befinden.
In addition to the provision of the server and services, in accordance with the contract, 123CONSULTING owes an effort to make the data stored by the customer on the network operated by 123CONSULTING available to the public, i.e. on Internet. 123CONSULTING may be held responsible for the availability of the data only if public access is not possible exclusively due to the part of the network operated by 123CONSULTING.
123CONSULTING guarantees the reachability of its server for a yearly average of 98%. Periods of time in which the sever is not reachable due to technical or other types of problems beyond the sphere of influence of 123CONSULTING (force majeure, third party negligence, etc.) are excluded from this percentage. 123CONSULTING may restrict access to the services if the safety of the operation, the maintenance of network integrity, in particular the prevention of serious disturbances of the network, software or stored data are at risk. 123CONSULTING is entitled to cancellation without notice if a customer negatively influences the equipment during an observation period, thus causing or threatening to cause system failures.
The customer is responsible for the server environment in the sense that, he/she has to ensure that the internet presences or data of other customers of 123CONSULTING, the server stability, server performance or server availability are not impaired in any way contrary to the contractually presupposed use (e.g. by installing corrupted or use-intensive software). 123CONSULTING reserves the right to prohibit the use of technologies that put excessive strain on the web server.
The customer is responsible for any content that he/she uploads on his/her own account and/or keeps available, stores or commissions third parties for it.
The customer is obligated to keep the passwords received by 123CONSULTING for the purpose of access strictly confidential and to inform 123CONSULTING immediately as soon as he/she becomes aware that the password is known to unauthorized third parties.
When acquiring and/or maintaining a domain, 123CONSULTING acts only as an intermediary between the customer and the respective organisation/company for domain assignment (“registry”). 123CONSULTING does not warrant that the domains requested for the customer will be assigned at all or that the allocated domains are free of third party rights or that the domains will continue to exist permanently. In addition, the registration conditions and regulations may vary in each case depending on the domain to be registered, e.g. for DE domains, the DENIC registration conditions and the DENIC registration guidelines of DENIC eG.
Upon request of 123CONSULTING, for registering the domain, the customer is obligated to provide the correct and complete data to the domain holder (“registrant”) and to the administrative contact person (“Admin-C”), if these are required by the registrar. 123CONSULTING informs that it cannot be held liable for any disadvantages the customer may have if he/she refuses to provide the required information to the registrar by referring to data protection regulations or any other reason. In this case, the customer is obligated to contact the registrar directly. The customer must immediately update the data and notify 123CONSULTING via web interface, post, fax or e-mail.
123CONSULTING is entitled to activate a domain only after the payment of the agreed registration fee has been settled. Notification on whether a particular domain is still available is made by 123CONSULTING based on information provided by third parties and is only based on the point in time in which 123CONSULTING retrieved the information.
Before applying for a domain, the customer verifies that it does not violate the rights of third parties or any applicable law. The customer ensures that he/she has complied with this obligation and that, during the verification, no indications of legal violation have been found.
Should third parties advance any claims against 123CONSULTING for actual or alleged violations, 123CONSULTING is entitled – after careful consideration and by considering the interests of the parties involved – to immediately suspend the customer’s domain and/or place it in the care of the registrar.
The customer is not entitled to the right to apply for domain replacement free of charge.
If the customer does not place his/her domain into the care of another provider within 10 working days after the effective cancellation, 123CONSULTING is entitled to release the domain. At the latest after expiry of the aforementioned period, all rights of the customer from the registration expire.
Should 123CONSULTING not be able to maintain the registration of a sub-level domain of the customer – in accordance with the provisions of the respective contracting authority of given top-level domains – 123CONSULTING is entitled to extraordinarily terminate the contract with the customer for these services with a notice period of 14 days to the end of the month.
Insofar as single domains of a tariff are terminated by the customer or due to binding decisions in domain disputes, the customer is not entitled of the right to apply for domain replacement free of charge. In case of premature termination, no refund will occur, neither for single domains of a tariff nor for additional singularly reserved domains, unless the termination is due to a negligence by 123CONSULTING. This also applies to other separable single services of a tariff or other options booked additionally.
25. Consent to transfer data for the purpose of domain registration
In order to register a domain for the customer, 123CONSULTING must transfer customer data to the “Network Information Center” (NIC) or to the selected “domain name registry” as well as to “registrars” (e.g. ICANN, Denic) and is subject to their procedures (NICs and registrars hereinafter referred to as “registry”). These procedures especially include a publication of the data in the so-called WHOIS search queries, which are accessible to the public.
The availability of data for retrieval and, in particular, its publication is an objectionable practice of the registry in terms of data protection law and will be evaluated with the aim of developing a privacy-compatible model. As soon as the new data models will permit the transmission of a lower amount of data, 123CONSULTING will restrict the data transmission accordingly.
Until registries will change their procedures and given that, in some countries, they may not – or not immediately – follow the change process, 123CONSULTING asks customers to give their consent to the procedure in the case of some domains.
With a domain registration, customers give their consent to 123CONSULTING to submit the data to the registry as described above and make this data publicly available. Customers also agree that these data may be transferred to third countries, i.e. outside the EU and the European Economic Area and also in countries where the level of data protection is considered by law not to be in line with European data protection law (e.g. USA).
123CONSULTING explicitly informs the customers on their right to objection, as well as the possibility of revoking their consent and user rights (these can be found in 123CONSULTING’s data protection policy). However, 123CONSULTING reminds that the enforcement of revocations and objections may require the termination of the contractual relationship without 123CONSULTING being able to reimburse the ongoing costs until the time of the actual termination. Similarly, 123CONSULTING relies on the cooperation of the registries, for example with regard to the duration of processing and the scope of data deletion. The legal basis of the consent is Art. 6 paragraph 1 lit. a, Art. 7 GDPR.
25.6. List of data transmitted to the registries and made available to the public: “name, surname, company, postal address, e-mail contact, telephone number of the registrar/domain holder”. The list is broad, i.e. it may include many detail requests and publications and it may be possible that many registries will require or publish a more limited amount of data. For further information on the actual data practice of the individual registries, 123CONSULTING refers customers to their information and support pages (https://www.icann.org/registrar-reports/accredited-list.html).
26. SSL- and other certificates
In the acquisition of certificates, 123CONSULTING will act merely as an intermediary between the customer and the respective “Certification Authority”. Each certification authority has its own conditions for the assignment of certificates. In addition, the contractual conditions (“subscriber agreement”) of the individual certification authority apply. Upon request, 123CONSULTING will send them to the customer and they can also be accessed online on the website of the respective certification authority. These conditions are part of the contract.
Every time a certificate is ordered, a separate contract is concluded for its application. The contract is concluded with the application for the certificate at the certification authority.
The duration of the contract corresponds with the chosen duration of the certificate and ends automatically after its expiration.
Der Kunde ist verpflichtet, für die Richtigkeit der für die Ausstellung des Zertifikats benötigten Daten zu sorgen.
The customer is obligated to ensure the accuracy of the data required for issuing the certificate.
If reasonable suspicion of misuse exists or the customer has given incorrect information to 123CONSULTING when applying for the certificate, the certification authority and 123CONSULTING are entitled to terminate the certificate.
27. Termination and indemnity
123CONSULTING is entitled to terminate the contractually agreed services under the following conditions (this include also the marking of certificates as invalid, the suspension of domains through HOLD status and the suspension of domain transfer procedures). 123CONSULTING selects the termination measure at its discretion after careful consideration. 123CONSULTING will consider the legitimate interests of the customer. Should the termination occur in the form of deactivation of the domain name service, 123CONSULTING informs the customer. At the same time, 123CONSULTING advices the customer on how he/she can access the content, in particular for the amendment or elimination of the violation. 123CONSULTING complies with its notification obligation by sending the termination notification by e-mail to the e-mail address provided by the customer.
In the case of payment overdue by more than 30 days corresponding to the total amount of a monthly fee, 123CONSULTING is entitled to suspend the services used by the customer. If 123CONSULTING suspends the services due to late payment, 123CONSULTING will resume the services upon settlement of all outstanding debts as well as a handling fee of EUR 20.00. The customer reserves the right to prove that no damage or a minor damage occurred.
In accordance with clause 24.4 of these T&Cs, should 123CONSULTING become aware of a violation committed by the customer independently from the latter, 123CONSULTING is entitled to suspend the services. This may include a violation which is not obviously unfounded or a legal claim against the customer and, especially, reception of a legal warning. 123CONSULTING will immediately notify the customer of the suspension by stating the reason and considering its opinion and interests before making the suspension effective. 123CONSULTING will withdraw the suspension if the customer makes an explicit statement to 123CONSULTING and provides adequate security. In this context, the level of security corresponds to the amount of possible legal costs of 123CONSULTING in the event of judicial review if a breach of law or contract exists.
Insofar as 123CONSULTING is claimed by third parties or government agencies for breach of contract or violation of consumer rights, the customer is obligated to indemnify 123CONSULTING against all claims and to bear the costs incurred as a result of the claim or elimination of the unlawful condition. This includes in particular the legal defence costs of 123CONSULTING. The indemnity also applies – as a contract for the benefit of third parties – to the domain registry concerned as well as other persons involved in the registration of domains.
28. Support services by 123CONSULTING
Unless otherwise agreed in the chosen tariff, 123CONSULTING offers support for its customers both free of charge as well as upon the payment of a fee.
The support offered to the customer free of charge includes issues related to the operation of the customer menu.
All support services not related to the functions of the customer menu are offered upon the payment of a fee to be calculated according to the hourly rates and to the current price list. Likewise, if the customer commissions 123CONSULTING to apply changes in connection with the functions from the customer menu, this type of support is provided upon the payment of a fee.
Support services through 123CONSULTING will be offered per e-mail.
The customer will pay a fee also for phone support even if concerning issues related to the customer menu. The fee will be calculated according to the hourly rates and to the current price list.
For further support, 123CONSULTING will bill the customer for the workload according to the hourly rates in accordance with the “remuneration annex” or otherwise notified rates.
29. Obligations of the customer
The customer guarantees that the data provided to 123CONSULTING are correct and complete. He/she is obligated to inform 123CONSULTING without delay of any changes to the data provided and, upon request by 123CONSULTING, to confirm the current accuracy within 15 days of receipt. This applies in particular to the name and postal address of the customer, name, postal address, e-mail address as well as telephone and fax number of the technical contact person for the domain; name, postal address, e-mail address as well as telephone and fax number of the administrative contact person for the domain.
The customer must retrieve incoming messages in his/her e-mail inboxes at regular intervals of no more than four weeks. 123CONSULTING reserves the right to refuse personal messages received by the customer if the capacity limits provided for the respective tariffs are exceeded. The customer receives a notification when the data size of the stored e-mails exceeds the limit of 90% of the permitted volume.
The customer undertakes to keep the passwords received by 123CONSULTING for the purpose of accessing their services strictly confidential and to inform 123CONSULTING immediately as soon as the customer becomes aware that the password is known to unauthorized third parties. Should third parties use services of 123CONSULTING as a result of misuse of the passwords, the customer is liable to 123CONSULTING for compensation for use and for damages.
The customer undertakes not to send any e-mails containing advertising without explicit consent from the individual recipients or other legal permission. The customer commits to the payment of a contractual penalty of € 5,100.00 to 123CONSULTING in case of violation of this clause.
In addition, the customer undertakes to send commercial e-mails – in particular newsletters – exclusively to third parties who have registered by means of a “double opt-in” procedure for receiving e-mails. In case of violation, a contractual penalty of € 5,100.00 will be forfeited.
The customer is obligated to structure his/her webpage in order to avoid straining the server, e.g. with scripts that require a lot of computing power or that consume an above-average amount of RAM. 123CONSULTING is entitled to exclude pages that do not meet the above requirements from access by the customer or third parties. 123CONSULTING will immediately inform the customer of such a measure.
29.7. 123CONSULTING will provide volume for additional data transfer, within the scope of the technical capacity of the data centre and considering the performance obligation towards the other customers, for an additional fee. The amount of the latter is calculated based on the applicable tariffs. In principle, the customer has to pay an additional fee in accordance with the “remuneration annex” or otherwise communicated rates when exceeding the contractual data transfer volume per GB of data.
The customer undertakes not to operate chats/games of any kind as well as public banner exchange programs on the online presences supported by 123CONSULTING.
30. Internet presences, content of webpages, newsletter
The customer undertakes to signal clearly as his/her own (imprint) any content published on his/her webpages.
The customer undertakes to signal clearly as his/her own all commercial e-mails, in particular when using “newsletter tools”.
The customer cannot violate legal prohibitions, the good morals and rights of third parties (brands, copyright, privacy rights, etc.) through the Internet presence, banners displayed there, the name of his e-mail address and – if a shop is the subject of the contract – the contents of his Internet shop. In particular, the customer commits not to offer or allow the offering of pornographic content and profit-oriented services involving pornography and/or erotic content (e.g. naked pictures, peepshows, etc.). This also applies to illegal offers such as hacker tools or offers that are or appear to be against the law. The customer may not enter his/her Internet presence in search engines insofar as he/she uses keywords in the registration that violate legal prohibitions, the good morals and/or rights of third parties. In the event of any breach of any of the above obligations, the customer promises 123CONSULTING – excluding continuation of offence – to pay a penalty of EURO 5,050.00 (in words: five thousand and fifty Euros).
The customer exempts 123CONSULTING, its employees and vicarious agents, the organisation for the allocation of domains concerned as well as other persons involved in the registration, from third party claims as well as from all expenses due to the improper use of an internet domain by the customer or the approval of the customer.
The customer undertakes to inform immediately 123CONSULTING in case of legal disputes against the customer on the basis of the domain registered and delegated by 123CONSULTING, in particular if he/she is accused of violating the rights of third parties. In this case, even already before the contract begins, 123CONSULTING is authorised to waive the disputed domain in the name of the customer or to block it, in whole or in part, until clarification of the allegations for third party requests. The customer can provide 123CONSULTING with security in the amount of the expected costs (legal and court fees, claims for damages); the minimum-security amount is of € 5,000. 123CONSULTING will decide how to proceed with the domain at its best discretion on a case-by-case basis. The above regulations also explicitly apply to disputes based on the content available under the domain, in particular copyright infringements.
123CONSULTING is not obligated to verify the Internet presence of the customer against legal violations. After detecting legal violations or improper content, 123CONSULTING is entitled to lock the Internet presences. 123Consulting will inform the customer of such measure immediately.
31. License agreements and copyright law
The customer undertakes to ensure that each individual using such program complies with the license agreement. The customer can use the program only on one computer at the time. One “usage” of the program exists when the program is on the main memory or on a storage medium of a computer. A program installed on a network server for program distribution purposes only is considered as not in use.
The license fees charged by 123CONSULTING are based on frequency of use (for example, number of users), resources (for example, processor size), or a combination of both. Should the access to a program be controlled by a license management program, copies may be made and stored on all machines controlled by such license management program; however, use shall not exceed the total number of permitted users or resources. Programs intended for home or travel use may be stored on one primary and one additional computer; however, the program must not be actively used on both computers at the same time.
If 123CONSULTING has granted the customer a right of use for the programs or advertising material for a limited time or if the right of use terminates due to cancellation of the contract, the customer must return all data carriers with programs received from 123CONSULTING, any copies and all written documentation and advertising aids to 123CONSULTING. The customer deletes all stored programs from his computer systems, unless he is legally bound to keep them for longer. After termination of the contract, the customer no longer has the right to use the programs of 123CONSULTING.
For each case of violation of the obligations set out in points 31.1 to 31.4 of these T&Cs, the customer promises to 123CONSULTING a contractual penalty of € 2,500.00. In addition to the contractual penalty, the customer is liable for the damage caused to 123CONSULTING through the violation.
32. Prices and payment
The prices are based on the current valid price list.
The fee for the application/transfer, use and set up of the assigned domain is calculated according to the current price list.
123CONSULTING has the right to activate a domain only after successful payment of the fee agreed in accordance with the valid tariff. The payment obligation occurs as soon as the web account is enabled regardless of the domain registration.
The access to the server and the domain can be suspended after 20 days of payment delay. The customer will be informed about the suspension and will bear the costs related to such suspension. Only after the payment has been settled in full, access will be granted. Should the payment delay be over 60 days, the account and all related data can be deleted and the domain closed. In the latter case, 123CONSULTING is not obligated to notify the customer.
33. Spam-filter, guarantee, liability
123CONSULTING voluntarily provides the customer with a spam-filter for his/her e-mail box free of charge and in accordance with the specifications of the filter.
123CONSULTING has the right to deactivate the filter at any time if required by technical or legal reasons. 123CONSULTING notifies the customer of the deactivation of the spam filter by means of a circular e-mail.
E-mails classified as spam by the filter will be marked as spam-mail by the spam filter. 123CONSULTING notifies the customer per circular e-mail about changes to the marking. 123CONSULTING endeavours to keep the filter up-to-date with the latest technology.
In order, to use the spam filter, the customer must customise the settings of his/her hosting tariff or commission 123CONSULTING to customise them for him/her upon payment of a fee.
123CONSULTING cannot guarantee to the customer that by activating the spam filter he will no longer receive any undesired e-mails or that legitimate e-mail messages will not mistakenly be marked as spam by the filter. In this respect, any liability of 123CONSULTING is excluded. The filters can solely reduce the total volume of these e-mails and pre-select them for the customers. It is the sole responsibility of the customer to verify the correctness of the mark applied by the spam filter.
123CONSULTING cannot guarantee that the filters will be operative at all times. 123CONSULTING is not liable for deleted, rejected or unreceived e-mails and the resulting damages or losses for the customer or for harmful e-mails that have not been recognised and their resulting damages.
F. F. OWNERSHIP AND RIGHTS OF USE
34. Guarantee and grant of rights of use towards 123CONSULTING
The customer ensures that the content provided by him/her is free from third-party rights and that their publication does not violate applicable law in any way. The provided content also includes such content and its sources recommended or suggested by the customer to 123CONSULTING for the purpose of performance of its duties.
In particular, the customer guarantees to own all the rights required for the use of the content as instructed, to not violate any rights of third parties (in particular industrial property rights, copyrights, brand rights or personal rights etc.) or any other legal provisions. The customer is the sole responsible for the content and the lawfulness of the content provided by him/her or by third parties on his behalf.
The customer shall otherwise exempt 123CONSULTING from any third-party claims that may incur against 123CONSULTING in connection with the customer’s content and will indemnify 123CONSULTING from the costs necessary for legal defence. In the legal defence against third parties, the customer is obligated to support 123CONSULTING in good faith with information and documents and to inform 123CONSULTING in writing and in due time about cease and desist letters or injunctions related to third parties’ rights.
The customer transfers to 123CONSULTING, in due time and insofar as required for the execution of the contract, all rights required for the contractual use of the content in online media of all kinds including Internet. These rights include copyright, ancillary copyright, brand and trademark rights and other rights. In particular, this applies to the right to reproduce it, distribute it, transmit it, broadcast it, edit it for public access, upload it in a database and have it available for retrieval, remove it and retrieve it from a database.
35. Grant of rights of use for the benefit of the customer
For all works created individually and specifically for the customer (for example individual graphics, logos or program routines tailored to the individual needs of the customer), the customer receives an exclusive right of use and exploitation. Such right is unlimited in time and space but functionally limited to the contractual purposes and, in particular, includes reproducing, distributing and making these works accessible to the public. This excludes the right to resell and redistribute the work, unless it has been expressly agreed or it is clearly in the nature of the order. In addition, 123CONSULTING confers on the customer the rights of use required for the relevant contractual purposes. This applies to such works corresponding to the order description in their scope of use, useful life as well as area of application. Unless otherwise agreed, in each case a simple right of use is transferred for own use.
In the case of works building up on other works, changing, extending or adapting them (e.g. for the individual adaptation of classes, function library, design patterns or templates, short “working base”), even if they are a working base created or used by 123CONSULTING, the exclusive rights of the customer do not stretch over the original works but rather only as far as the single legally protected changes, extensions and adaptations made by 123CONSULTING for the customer.
The customer will be granted the right to adapt the works solely as long as the adaptation right has been explicitly agreed upon or it is clearly in the nature of the order.
The rights of use on the works are granted to the customer only after the remuneration related to such works has been settled in full.
As far as the work contains an open source component, the transfer of rights occurs solely within the area and in accordance with the relevant open source license. 123CONSULTING expressly points out that the open source components may only be used, processed and be subject to disposition within the scope of the respective license.
Suggestions and instructions of the customer or his/her employees do not constitute a joint authorship right.
Insofar as rights of use of works, authorship rights or copyrights, etc. (hereinafter collectively referred to as “IP rights”) are transferred, 123CONSULTING is obligated to provide the customer with the data and information necessary for their contractual use. In addition, the IP rights do not include rights to information material or access rights and, in particular, exclusive rights to data. An exclusive transfer of rights to data requires an express agreement. This is subject to other restrictions on the use and processing of such data and information (for example, by privacy or confidentiality requirements), as well as to explicit agreements and the purpose of the contract.
Subject to any express confidentiality obligations, 123CONSULTING is entitled to refer to the works designed and produced for the customer as well as services provided for the purpose of self-promotion.
Furthermore, 123CONSULTING is entitled to indicate its authorship in the imprint of websites and other online sites and within software, as long as the contractual use is not compromised. The customer is not authorised to remove these indications without the consent of 123CONSULTING.
37. Rights to online accounts
Without prejudice to these T&Cs, the customer becomes the owner of online accounts, provided that they have been created, purchased or otherwise procured by 123CONSULTING within the framework of the contractual provision of services or expressly transferred to the customer by 123CONSULTING.
In addition, 123CONSULTING retains the rights to the online accounts, in particular when using its own business accounts or private online accounts of its employees in the performance of the contract. The co-use of an online account by the customer or its use for the customer do not constitute a right of the customer to this online account. The rights of use to online accounts are granted until the end of the contractual relationship between the parties, unless an explicit grant of rights beyond this period is planned or results from the purpose of the contract.
If ownership cannot be granted, 123CONSULTING grants the customer the right to dispose of and use the online accounts to an extent as close as possible to an ownership.
38. Dissemination of templates, designs and source codes
The templates, designs, raw data, data and other working tools produced by 123CONSULTING for the purpose of delivering the contractually agreed services (hereinafter referred to as “source material”) remain property of 123CONSULTING. Should the customer request to make them available to the public, this will need to be agreed and remunerated separately.
If the dissemination of the source code is agreed or otherwise planned (for example under an open source license), the handing over/providing of the access in digital form is sufficient. If a right to process the work has not been agreed, the customer may only use the source code if 123CONSULTING cannot or does not want to execute an error correction, modification or extension of use within a reasonable period of time. The customer is aware that in order to work with the source code, it may be required to purchase developer licenses for the third-party components used. If the source code is not under an open content license, it may not be used for a purpose that is not part of the contractual agreement with 123CONSULTING, unless otherwise agreed.
An obligation to storage does not exist. 123CONSULTING is entitled to delete the templates, the source code and other content provided (including, but not limited to, documents and files) no later than 6 months after the end of the contract (e.g. due to expiry or termination) or 6 months after completion of the order. If the dates of the termination of the contract and the conclusion of the work commissioned do not match, the later date applies.
39. Offers, presentations and pitches
The development of conceptual and productional suggestions by 123CONSULTING with the objective of further orders from the customer occurs – without prejudice to individual cases of deviating regulations – against payment of a fee agreed upon with the customer (presentation fee).
Copyright, rights of use and property on the works presented in this context remain with 123CONSULTING also when the payment of the presentation fee occurs. The customer acquires these rights in the agreed scope and extent only with the placement of the order to implement the project presented against separate payment.
G. WARRANTY AND LIABILITY
40.Claims in case of defects
Claims for defects do not exist in the case of insignificant deviations from the agreed or presupposed condition or in the case of insignificant impairment of the usability in accordance with the purpose of the contract. The content of the order description does not constitute guarantee or assurance of given features unless explicitly agreed in writing.
123CONSULTING undertakes to create software so that it has a response time and functional behaviour matching with that of other industry-standard software, with comparable content and scope, as well as comparable server environment at the time of completion of the software. This applies only in a situation where comparable internet connectivity and technical features of the hardware and software used by the end user to run the software are to be found. Website/apps and similar online products must be able to run within the industry-standard browsers, systems, and devices at the time of completion of the software. Browsers, systems and devices that were released over a year ago, as well as browsers and screen resolutions 10% lower than those to be found on the market are to be considered as not in line with the industry standards.
In the case of updates, upgrades and deliveries of new versions of software, claims for defects are limited to the new elements brought about with the update, upgrade or new version delivery in comparison with the previous version.
If the customer requires supplementary performance due to a defect, 123CONSULTING has the right to choose between improvement, replacement or provision of an equivalent service. If the customer of 123CONSULTING has set a further reasonable period of grace after a first deadline without any results, and this second deadline has also passed without results, or if a reasonable number of attempts to improve, replace or deliver a substitute service have been unsuccessful, the customer may choose – in accordance with the legal conditions – to withdraw from the contract or to assert a claim for damages or reimbursement of expenses. The supplementary performance can also occur by handing over or installing a new version of the software or a workaround. If the defect does not affect the functionality or only insignificantly, then 123CONSULTING is entitled – under exclusion of further warranty claims – to remedy the defect by delivering a new version or an update as part of the release, update and upgrade planning.
Complaints for defects must be reported in writing (e-mail is sufficient) with a comprehensible description of the error symptoms, as far as possible, proven by written records, screenshots or other documents illustrating the defects. The complaint should allow the reproduction of the error. Legal inspection and complaint obligations of the customer remain unaffected.
Changes or extensions of the services or of a software, which the customer – or a third party for him/her – carries out by himself/herself, cancel the customer’s warranty claims, unless the customer proves that the change or extension was not the cause of the defect. 123CONSULTING is also not responsible for defects caused by improper operation, operating conditions or the use of unsuitable equipment by the customer.
123COSULTING can refuse to provide a supplementary performance until the customer has settled the due remuneration minus an amount corresponding to the economic value of the defect.
The limitation period for claims for defects is 1 year from the acceptance of the service. In the case of the delivery of updates, upgrades and new versions, the period for these parts begins to run with their acceptance. In the case of service contracts (Dienstvertrag), the limitation period for non-performance or poor performance is 6 months.
Customers must reasonably ensure, within the scope of the possibilities available to them, that the defect claim issued against 123CONSULTING is based on existing defects and not, for example, based on operating errors or not belonging to the envisaged condition of a performance. If the customer omits this obligation, he is obligated to reimburse 123CONSULTING for the expenses incurred as a result of the unjustified assertion of the defect.
Claims for damages are subject to the restrictions of section 43 of these T&Cs (“Liability and damages”).
41. Use of third party’s services
The following regulations apply for the use of third party’s services through 123CONSULTING in the fulfilment of the service for the customer. Services provided by third parties are to be understood as services which are obtained from third parties on behalf of the customer or within the scope of the customer’s order, e.g. rights of use of online platforms, stock photos or open source software or services from hosting providers.
In the event of a defect of quality or title in the service of a third party, 123CONSULTING cannot be held responsible. 123CONSULTING only passes on a third party’s service to the customer, thus the defect claims of the customer are limited against the third party (e.g. if an open source software is incorporated). 123CONSULTING takes responsibility for the defect, if the cause of the defect has been created by 123CONSULTING, i.e. the defect is based on an improper modification, integration or other treatment of the third party’s service.
123CONSULTING cannot be held responsible if the use of third party’s services is restricted or discontinued by third parties. Should the third party introduce a fee for providing the service under discussion, 123CONSULTING has the right to adjust the compensation agreed with the customer accordingly, insofar as the customer wishes to continue using the services after consultation and the fee would be charged to the customer by 123CONSULTING.
42. Behaviour of third parties
The customer acknowledges that the behaviour of third parties in online media is unpredictable and 123CONSULTING cannot be held responsible for the behaviour of third parties (e.g. negative comments, protest activities, etc.).
This does not apply if 123CONSULTING has culpably encouraged such behaviours. In this case, the liability is determined in accordance with clause 43 of these T&Cs (“Liability and damages”). In determining the responsibility of 123CONSULTING, the standards of conduct customary in the industry and reasonably expected behaviour patterns of the third party shall be considered.
123CONSULTING will inform the customer as soon as the behaviour of third parties reaches an extent that could permanently damage the reputation or promotion of the customer.
If there are any concrete doubts as to the legal admissibility of content by third parties or objective motivation to assume potential harm to the customer, 123CONSULTING may decide to not publish such content (for example, delete comments) or ban users.
43. Liability and damages
123CONSULTING is liable under this contract only in accordance with the following provisions:
123 CONSULTING bears unlimited liability if the cause of the damage is based on intent or gross negligence of 123CONSULTING or its legal representative, for damages caused by executive employees as well as for intentionally caused damages of other vicarious agents. For gross negligence on the part of other vicarious agents, the liability shall be determined in accordance with the regulations for slight negligence listed in clause 43.6 of these T&Cs.
123CONSULTING bears unlimited liability for intentional or negligent damage leading to death, injury and/or affecting health if caused by 123CONSULTING, its legal representatives or vicarious agents.
123CONSULTING is liable for damages resulting from the absence of guaranteed features up to the amount included in the purpose of the guarantee, which was recognisable to 123CONSULTING upon submission of the guarantee.
123CONSULTING is liable for product liability damages in accordance with the provisions of the product liability act (Produkthaftungsgesetz).
123CONSULTING is liable for damages resulting from the violation of the cardinal obligations by 123CONSULTING, its legal representatives or vicarious agents. Cardinal duties are the essential obligations that form the basis of the contract, these are decisive for the conclusion of the contract and the customer can rely on them for the fulfilment. If 123CONSULTING has breached these cardinal obligations due to slight negligence, its liability is limited to the compensation of the foreseeable, typically occurring damage (hereinafter referred to as “typical damage”).
The typical damage is generally limited to the amount stipulated and otherwise to the amount of the contractual remuneration of the customer for the period in which the breach of duty occurred. This does not apply if the restriction in individual cases would be inappropriate in terms of equity. The typical damage does not exceed five times the agreed remuneration.
H. REMUNERATION AND INVOICING
The remuneration and the payment plan for the contractually owed services are set out in the order description. Insofar as the contracting parties have not agreed a fixed remuneration, the remuneration shall be calculated according to expenditure. Insofar, the rates of 123CONSULTING valid at the time of provision of the service apply.
Prices are net, plus VAT.
Unless otherwise agreed, the actual expenditure is decisive for the billing. 123CONSULTING always calculates on an hourly basis. For billing on the clock, the smallest billing unit is 30 minutes.
The customer shall remunerate services provided by 123CONSULTING that occur as a result of incorrect or incomplete information, unverifiable complaints, improper system usage or breaches of obligations by the customer.
Fees of collecting societies, in particular of the society for musical performance and mechanical reproduction rights are paid by the customer, unless otherwise agreed.
Work executed – at the explicit instruction of the customer – outside normal working hours (Monday to Friday, 10am – 6pm) will be charged with a factor of 200%.
In addition to the agreed remuneration, 123CONSULTING is entitled to reimbursement of the costs and expenses required for the provision of the services. In particular, this include travel and accommodation expenses as well as other charges, insofar as these have been reasonably approved by the customer. 123CONSULTING calculates these in a verifiable manner together with the services provided or, in a timely manner, separately. Unless otherwise agreed, travel expenses are calculated net either according to the costs actually incurred for 2nd class train rides and/or economy class flights (including luggage/meal) or for journeys by car to 0.30 Euro/km. The basis for this is the fastest route on the commercial route planner used by 123CONSULTING. In the vicinity of 10km, travel expenses do not apply. Starting point of the journey/departure is the address of 123CONSULTING, unless otherwise agreed. Travel times will be charged at 50% of the daily rate. In the case of delays by the customer and/or appointments postponed by the customer, the latter carries the non-refundable travel costs and any applicable cancellation costs.
Insofar as 123CONSULTING receives a remuneration depending on the time invested, the customer is obligated to sign immediately proofs submitted in order to signal his/her approval. In this context, approval should be granted no later than within 7 working days (Monday to Friday) from the date of receipt. Insofar as the customer does not agree with the evidence provided, he will explain any objections to the evidence within this period in detail in written form. The contracting parties will then immediately seek clarification. Afterwards the proofs are to be signed by the customer immediately. With the payment, the evidence is considered signed.
The remuneration will be due at the agreed date.
Unless otherwise stated, invoices shall be settled within 7 working days (Monday to Friday) after the invoice date.
Unless otherwise agreed, in the case of services performed under work contracts (Werkvertrag), the remuneration is due with the (partial) acceptance of the service. With an order value of more than € 1,000, 123CONSULTING is entitled to 30% of the order amount before the start of the work even without a separate agreement, 30% at the middle of the agreed project period and 40% after acceptance. If the services include costs that must be anticipated for products/services of third parties, 123CONSULTING is entitled to their payment before performing these services.
Should the contract be terminated before the agreed termination date, 123CONSULTING is entitled to a remuneration corresponding to the services performed until the termination of the contract.
Unless otherwise agreed, invoices are presented in electronic form and sent via e-mail or made available online for download.
Insofar as SEPA direct debit payment have been agreed, the following applies: the upcoming direct debit charge is announced in advance, at the latest 1 (one) calendar day before the due date (advance information/prenotification).
In case of late payment or deferral, default interest and collection costs will be charged. 123CONSULTING can postpone the further execution of the current order until payment and request advance payment for the remaining delivery. This does not affect the enforcement of further rights.
In the case of direct debit, the customer authorises 123CONSULTING to collect the payments to be made by the customer at the expense of an account to be designated by the customer. The customer is obligated to inform his/her bank about the direct debit authorisation and to ensure the availability of sufficient funds on the account.
Objectively justified doubts about the customer’s ability to pay entitle 123CONSULTING, even during the term of the contract, to make the further provision of services dependent on the prepayment of the amount and on the settlement of outstanding invoice amounts, irrespective of an originally agreed payment term.
In addition to legal claims, in the event of default, a reminder fee of Euro 5.00 will apply for each reminder of the invoice. The customer reserves the right to prove lower dunning costs.
The customer is obligated to ensure the availability of a sufficient amount of funds on his/her account as well as to ensure that the due amounts can be collected. The customer bears the costs arising from failed transactions. This obligation also exists, insofar as the customer, in an isolated case, does not receive the prenotification timely or at all.
If more invoices have the same due date, in isolated cases, the debited amount can diverge from the amount shown on the single invoice or the amount communicated in the prenotification. In this case, the total amount (sum of the amounts on the invoices) will be debited.
The customer can only offset undisputed or legally established claims against claims of 123CONSULTING. The customer is entitled to exercise a right of retention only because of counterclaims from the same legal relationship.
Should a completion date have been set for a project to which 123CONSULTING would be entitled to invoice its services and the completion date could not be met due to circumstances for which the customer is responsible (e.g. content has not been provided), 123CONSULTING may invoice the agreed remuneration on the completion date as if the project had been completed without the relevant delay at the time.
46. Adaptation of prices
In the case of continuing obligation contracts (Dauerschuldvertrag), 123CONSULTING is entitled to a reasonable increase in the agreed fees upon notification. Such an increase will be effective at the end of each billing period. If no billing period has been agreed, the increase can take place after the expiry of a period of 12 months.
A price reduction will be effective at the end of the billing period ending after the price has changed.
Should the prices to purchase the services of third party increase, such increase will be passed on to the customer in the same ratio.
I. CONTRACT DURATION AND TERMINATION
47. Contract duration and termination
For contracts agreed as continuous obligations, the duration of the contract corresponds to the agreed contract duration. If the contract duration has not been expressly agreed and it has not been specified in the pertinent special provisions in these T&Cs, this is 12 months.
The billing period of additional options (e.g. other services) corresponds to the billing period of the main contract. If an option is ordered during the life of the main contract, the first contract period is adjusted to align with the remaining term of the main contract.
The termination of dependent options of a contractual relationship leaves the contractual relationship as a whole unaffected, unless the entire contractual relationship is terminated.
The termination shall occur in writer form.
After terminating the contractual relationship, 123CONSULTING is no longer obligated to deliver the contractually agreed services. 123CONSULTING can delete all the customer data, unless otherwise agreed or under the legal obligation to preserve business records. It is the responsibility of the customer to save and secure his/her data timely.
48. Termination with notice
If the notice period is not expressly agreed or not specified in the pertinent special provisions in these T&Cs, this is 30 days to the end of the contract.
The notice period of independent parts/options of a contract corresponds to the notice period of the main contract.
If notice is not given timely, the duration of the contract, will automatically be extended by the same amount of time after expiry of the term, unless otherwise agreed.
49. Termination without notice
Each party may terminate the contracts underlying these T&Cs without notice due to exceptional reasons, i.e. if one or more agreements have not been respected by the other party and, after a written request for improvement, culpably failed to do so within the reasonable deadline set.
If a continuation of the contract cannot be expected of the terminating party considering all circumstances of the individual case and weighing the interests of both contracting parties, termination without notice is also possible without prior request for improvement.
49.3. An exceptional reason exists when
– 123CONSULTING fails to comply with an expressly agreed completion date and lets a reasonable period of grace set by the customer to pass without result, unless 123CONSULTING is not responsible for the delay;
– one of the contractual parties commits a serious violation of its contractual obligations or obligations related to the current order;
– insolvency proceedings have been started against the assets of the other contracting party or, in the absence of assets, the opening of insolvency proceedings is refused.
J. DATA PROTECTION, CONFIDENTIALITY, CHANGES OF THE TERMS AND CONDITIONS AND FINAL PROVISIONS
50. Data protection
The personal data of the customer will only be collected, processed and used for the execution of the contract in accordance with these T&Cs and other contractual agreements. By concluding the contract, the customer agrees to the collection, processing and use of his/her data in electronic data processing systems.
The contracting parties observe the relevant data protection regulations. 123CONSULTING will in particular collect, process or use personal data of third parties received from the customer or collected, processed and used on behalf of the customer, only in accordance with the instructions of the customer. It follows that, it is responsibility of the customer to comply with the data protection regulations. Insofar as required by the provisions of the data protection regulations, in particular in the case of order processing in accordance with Art. 28 GDPR, the contracting parties conclude the relevant contractual agreements.
With regard to data disclosed, transmitted or otherwise provided to 123CONSULTING within the framework of the contractual relationship for data processing or otherwise made available, the customer is obligated to ensure that no statutory and contractual requirements for the protection of personal or business data are violated.
The parties will maintain strict confidentiality on all information and knowledge related to the business of the other party and acquired in connection with the execution of the contract. This applies to all employees, if applicable for the customers of the customer, as well as for third parties who have been used by one of the parties to fulfil the obligations arising from the contract. The secrecy obligation also exists after termination of the contract.
The contracting parties undertake to treat as confidential all confidential information that they become aware of during the execution of this contract and to use it only for contractually agreed purposes.
Confidential information within the meaning of this provision is information, documents, details and data designated as such or which, by their nature, are to be considered as confidential. The obligation of secrecy does not apply to developments that are already obvious (they are generally known, they are regarded as state of the art, etc.), thus are no longer secret or protectable. If the obviousness of a development occurs later, the obligation expires from that date.
The parties undertake to grant access to confidential information only to employees who are entrusted with the provision of service within the scope of this contract. Upon request of one of the contracting parties, both contracting parties are obligated to have their employees sign an obligation declaration and hand it over to the other party. The contracting parties will not exert any property right on confidential information of the other party.
Should a public authority require confidential information in the aforementioned sense, the other party must be informed immediately and, if possible and reasonable, prior to the provision of the information to the public authority.
The rights and obligations under this secrecy section shall not be affected by any termination of this contract. Both contracting parties are obligated to either return confidential information to the other party upon termination of this contract or to destroy it, insofar as they have not been used in accordance with the regulations.
Regardless of a possible claim for damages, the customer undertakes to pay 123CONSULTING a contractual penalty of at least € 10,000.00 for each case of culpable violation of this confidentiality agreement.
Public statements by the contracting parties relating to their cooperation, unless they are evident or in accordance with contractual agreements, shall be given only after expressing mutual agreement.
The contracting parties shall conclude relevant contractual arrangements where required by the regulation for the protection of trade and business secrets.
52. 52. Non-poaching clause
Both contracting parties are not allowed to mutually poach employees of the other party directly or indirectly. Furthermore, the contracting parties are prohibited from entering in any form of employment relationship with employees of the other party, insofar as an employment relationship between an employee and the respective contracting party already exists.
The aforementioned limitations do not apply if the employer in question has given written approval before the employment of the employee by the other contracting party.
In the event of a violation, a contractual penalty determined in terms of equity will be due. The penalty will amount to at least one annual gross salary of the employee who has been recruited and, if this is lower, at least EUR 25,000. The contractual penalty is not due if the contracting party was not aware of his employment with the other contracting party at the moment of employment/hiring of the employee.
53. Changes of the T&Cs
123CONSULTING reserves the right to change the T&Cs at any time with effect for the future. Changes only occur if there are valid and objective reasons, in particular of a legal, technical and economic nature, and only if it can be reasonably expected of the customer in terms of equity.
In the event of changes, 123CONSULTING notifies the customer of the changed terms and conditions, at least in written form, so that the customer has two weeks to object to the change. In this case, 123CONSULTING also reminds the customer of his/her right of objection and its consequences. In the event of an objection, the customer and 123CONSULTING have the right to terminate the contract. Termination may not occur if it would unreasonably affect the contractual interests of the customer. Should the customer not object to the changed conditions within the deadline, they will be deemed as accepted.
54. Final provisions
The customer may transfer claims related to this contract against 123CONSULTING to third parties only with the consent of 123CONSULTING.
The legal relationship between the contracting parties is governed exclusively by the law of the Republic of Austria – excluding supranational law and German, interstate and supra-national procedural law, which does not itself refer to substantive Austrian law and which does not apply even if the customer has his legal seat and/or his residential address abroad.
Place of performance is the registered office of 123CONSULTING.
The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is the location of the registered office of 123CONSULTING, provided that the customer is a trader as defined by commercial law, a legal entity as defined by public law or by the public separate estate or have no general legal venue in the Republic of Austria. 123CONSULTING reserves the right to assert its rights at the statutory place of jurisdiction.
The invalidity of individual provisions of these T&Cs and the contractual agreements based on them shall not affect the validity of the remaining provisions. In this case, the contracting parties undertake to reach an agreement on effective regulations that are economically as close as possible to the intended purpose of the ineffective regulations. This applies accordingly to the resolution of any loopholes in this contract.
The present General Terms and Conditions are available in English and German. In case of any divergences the German version shall prevail.