Scope

These General Terms and Conditions ("GTC") apply to all contracts of PLAMIS iHosting GmbH and its affiliated companies in Austria, unless otherwise agreed.

A contract is understood as any commission for the provision of services (confirmed offer, order, order, service or maintenance contract).

These terms and conditions apply without restriction, unless the contracting parties have expressly agreed otherwise in writing. Any purchase or trading conditions of the contracting party are hereby expressly contradicted, these are not part of the contract, unless their validity is explicitly and in written form approved by PLAMIS iHosting GmbH. This also applies if PLAMIS iHosting GmbH no longer objects to a later contractual document in which reference is made to other terms and conditions. The terms and conditions also apply to tacit acceptance of an offer. All offers of PLAMIS iHosting GmbH are non-binding.

Even without repetitive appeal to the Genaral Terms and Conditions, future supplements, additional or follow-up orders are concluded with the contracting party exclusively on the basis of these General Terms and Conditions.

Orders of any kind, especially those accepted verbally or by telephone, are accepted by PLAMIS iHosting GmbH only with the reservation of full acceptance of these General Terms and Conditions.

If PLAMIS iHosting GmbH mediates services / deliveries of third parties at the request of the contracting party, these contracts are concluded without exception between the contracting party and the third party under the respective General Terms and Conditions of the third party.

Change of Services/Change-Request

A change request is generally understood to mean a change in the scope of contractually agreed upon by mutual agreement or the given framework conditions.

PLAMIS iHosting GmbH and the contracting party have to submit their change request (change request) in writing. The change request should be described and formulated as precisely as possible. A desired change must provide a detailed description of it, the reasons for the change, the timing impact, and the cost to give the addressee of the change request the opportunity to make an appropriate assessment.

If necessary from a technical point of view, PLAMIS iHosting GmbH supports the contracting party free of charge in the formulation of the change request. If, due to the scope of this, it is necessary to prepare a specification sheet, this activity must be remunerated separately to PLAMIS iHosting GmbH.

PLAMIS iHosting GmbH will check every change request from the contract partner and inform the contract partner within 20 working days whether the change request for PLAMIS iHosting GmbH is reasonable and feasible. If PLAMIS iHosting GmbH denies the feasibility, it must give reasons in writing to the contracting party.

If the change request is reasonable and feasible, PLAMIS iHosting GmbH will inform you of how and in what time frame PLAMIS iHosting GmbH intends to implement it. In particular, effects on the scope of services, the duration of the contract and the remuneration are to be presented.

Remuneration for the implementation of the change request is owed if the examination and implementation of the change request causes an expense that is not only slightly above the normal contractually owed performance expenditure of PLAMIS iHosting GmbH. If this is the case in PLAMIS iHosting GmbH's opinion, PLAMIS iHosting GmbH will make this known in writing to the contractual partner and make an offer with details of the scope of services and the required compensation. The contracting party undertakes to issue the order in writing within 20 working days or to withdraw the change request.

Bis zur Umsetzung eines Change-Request ist PLAMIS iHosting GmbH verpflichtet, die hiervon betroffenen Vertragsleistungen nach den bislang geltenden vertraglichen Vereinbarungen zu erbringen, es sei denn, der Vertragspartner ordnet schriftlich an, dass die bisherige Leistungserbringung unterbrochen werden soll.

PLAMIS iHosting GmbH is obliged to keep a documentation about the change request and its implementation. This documentation must contain at least the following elements:

• 1. Date of the change request
• 2. Content of the change request
• 3. Date of completion of the change request
• 4. Signature of all Contracting Parties.

This documentation will be included as a new attachment to each contract.

Data migration

Should a data migration be used and this is contractually owed as performance, then PLAMIS iHosting GmbH will import the productive data (real data) existing at the contract partner into the new system after completing the system installation.

PLAMIS iHosting GmbH is not responsible for the accuracy or completeness of the data to be transmitted.

The contracting party is responsible for ensuring that its real data is sufficiently secured and suitable for being able to be restored at any time prior to the start of the migration (possibly also several times during the migration process).

The contracting party shall provide PLAMIS iHosting GmbH with its real data in a format suitable for the takeover, which PLAMIS iHosting GmbH informs the contracting party in advance. If adjustments to the existing database are required for the transfer of the real data (field descriptions, mapping, etc.), the contractual partner will make these. If PLAMIS iHosting GmbH is to take over these tasks, a separate order requiring remuneration is required for this purpose.

PLAMIS iHosting GmbH will inform the contracting party of the start of the migration process and point out to him the need for data backup.

The contracting party expressly assures and warrants that the rights of third parties will not be infringed by the migration. In the event of infringement of third party rights, the contracting party will indemnify and hold PLAMIS iHosting GmbH harmless.

Software and Development

The development of individual organizational concepts and training, system analysis and programming is based on the type and extent of the binding information, documents and resources provided by the contractual partner. This includes practical test data as well as sufficient testing facilities that the contracting party makes available in a timely manner, in the normal time and at its own expense. If the contracting party has already worked in real operation on the equipment provided for the test, the responsibility for securing the real data lies with the contractual partner.

For the creation of individual programs and individual training, the written description of services that PLAMIS iHosting GmbH has prepared on the basis of the documents and information provided or which is provided by the contractual partner, is binding. A description of services drawn up by PLAMIS iHosting GmbH must be checked by the contractual partner for accuracy and completeness. If PLAMIS iHosting GmbH does not object to these terms and conditions of performance within two weeks, the terms of reference shall be deemed to have been approved. Later requests for changes will only be made on separate date and price agreements.

Created software or program adaptations require program acceptance for the affected program package, which must be made no later than two weeks after delivery by the contractual partner. This program acceptance is confirmed in a protocol by the contracting party (check for correctness and completeness on the basis of the approved service description by means of the provided test data). If the contractual partner allows the period of two weeks to pass without program acceptance, the delivered software with the end date of the period mentioned is deemed accepted.

When ordering standard programs, the contractor confirms with the order to have knowledge of the respective scope of services of the ordered programs. The contracting party is also obliged to obtain the corresponding knowledge of the scope of services before ordering.

Obligation to cooperate of the contracting party

The contracting party undertakes to inform PLAMIS iHosting GmbH of all information, documents, procedures and circumstances required for the project. In this context, the contractual partner is obliged to disclose all economic circumstances and other factual circumstances that may be relevant for a proper contract performance. This includes, in particular, circumstances that are thematically located in the branch of the contracting party and that are not immediately apparent to PLAMIS iHosting GmbH, which is why inquiries from PLAMIS iHosting GmbH in this respect can not and must not be made.

In addition, this information obligation of the contracting party also applies to such circumstances, which become known only during the activity of PLAMIS iHosting GmbH at the contract partner. PLAMIS iHosting GmbH assumes that the information provided by the contracting party is correct and complete and therefore can not be verified by PLAMIS iHosting GmbH. Upon request of PLAMIS iHosting GmbH, the contracting party must confirm in writing the correctness and completeness of the documents, information and verbal explanations submitted by him.

In particular, the contracting party shall immediately notify PLAMIS iHosting GmbH in writing of any software-specific changes that could affect a part of the contract and which it itself or a third party has made ("in-house developments"). If PLAMIS iHosting GmbH incurs additional support costs due to its own developments, the contracting party shall bear the resulting costs in accordance with the agreed valid price list.

Also occurring disturbances, errors or dangers in the own system, like e.g. the compromising of the data or malware (malicious programs) is to be reported by PLAMIS iHosting GmbH immediately by the contracting party and documented comprehensibly in order to prevent a possible risk for the overall operation of the services by PLAMIS iHosting GmbH. Any necessary documents for error correction must be made available to PLAMIS iHosting GmbH for inspection. The contractual partner is also obliged to comply with the requests of PLAMIS iHosting GmbH, if necessary, in order to minimize further damage. At the request of PLAMIS iHosting GmbH, the contractor will use the PLAMIS iHosting GmbH Service Portal for incident reporting.

In addition to the aforementioned obligations, the contracting party is also obliged to support PLAMIS iHosting GmbH in the provision of services to the best of its knowledge and belief and to create all necessary conditions for the proper provision of services. The contracting party shall provide PLAMIS iHosting GmbH with all necessary staff for the fulfillment of the contract services free of charge and on time. Furthermore, the contracting party will provide all the correct and binding documents, data, access and information required for the contractual service free of charge and in due time and set up the necessary technical facilities.

If contractual services are provided on the premises of the contracting party or its customers, PLAMIS iHosting GmbH employees will be provided with sufficient work space and necessary working equipment (eg network components & Internet, connections, supply current including peak voltage equalization, emergency power supplies, etc.), parking spaces for plants and infrastructure to the extent required and quality (eg occupational safety, air conditioning) provided free of charge. The contracting party shall also ensure that PLAMIS iHosting GmbH or its employees and / or third parties commissioned by PLAMIS iHosting GmbH are allowed unimpeded access during the provision of services and that reasonable precautions are taken to protect the health and safety of PLAMIS iHosting GmbH employees; In particular, the contracting party must comply with the applicable statutory employee protection regulations.

The contract partner is responsible for ensuring that the employees involved in the fulfillment of the contract of his affiliated companies or third parties commissioned by him participate in the performance of the contract.

The contractual partner is obligated to treat the passwords and log-ins required for the use of the services of PLAMIS iHosting GmbH as confidential.

Unless expressly included in the scope of PLAMIS iHosting GmbH, the contracting party will provide a network connection at its own risk and expense.

The contracting party complies with the instructions given by PLAMIS iHosting GmbH regarding the description, limitation, determination and reporting of errors. If necessary, the contracting party will use checklists from PLAMIS iHosting GmbH.

PLAMIS iHosting GmbH is entitled to provide the contract service by remote maintenance. The contracting party shall provide a communication standard appropriate to the state of the art, in particular suitable hardware and software, and allow PLAMIS iHosting GmbH access to the applications for the fulfillment of the contractual service.

The contracting party shall safeguard all rights of the licensor (such as industrial property rights, copyright including copyright notice) to the software and the licensors claims to secrecy of trade and business secrets also by his employees and vicarious agents or third parties; this also applies if the software has been changed or linked to other programs. This obligation remains valid even after termination of the contract. It is the sole responsibility of the contracting party to obtain knowledge of the content of the respective software license conditions of the respective manufacturers (licensors). In any case, the contracting party submits to these license conditions by having him or his agents carry out or having carried out the action which the respective software manufacturer has designated as a declaration of consent. At the express request of the contracting party, PLAMIS iHosting GmbH shall provide the corresponding license conditions in advance.

The contracting party ensures that the hardware and software are operated under the operating conditions specified in the respective documentation. Likewise, the contractor has to take care of the room and building security, including the protection against water, fire and access to unauthorized persons. The contracting party is responsible for special security measures (such as security cells) in its premises.

Furthermore, the contracting party agrees to observe all relevant laws (in particular the Pornography and Prohibition Act, the StGB, the DSG 2000, the TKG 2003, the Media and Copyright Act and the Law against Unfair Competition) and to everyone the sole responsibility for the To comply with it.

All services to be provided by the contracting party are also to be provided in the event of rectification of defects.

The contracting party will render all duties of cooperation incumbent on it in such a timely manner that PLAMIS iHosting GmbH is not hindered in providing the services.

Compliance with the range of services by PLAMIS iHosting GmbH requires the full and timely fulfillment of all cooperation and other contractual obligations on the part of the contracting party. The contracting party expressly acknowledges this.

If the contractual partner does not fulfill his obligations to cooperate on the agreed dates or to the extent provided, the services provided by PLAMIS iHosting GmbH are nevertheless considered to have been provided in accordance with the contract despite possible restrictions. Schedules for the services to be provided by PLAMIS iHosting GmbH are postponed to an appropriate extent. The contractual partner will compensate PLAMIS iHosting GmbH separately for any additional expenses and / or costs resulting from this at the rates applicable at PLAMIS iHosting GmbH. PLAMIS iHosting GmbH is further entitled to withdraw from the respective contract with immediate effect in the event of a breach of the obligations to cooperate.

The contractual partner is not entitled to issue instructions of the PLAMIS iHosting GmbH staff of any kind whatsoever and will only make any requests concerning the provision of services to the contact person named by PLAMIS iHosting GmbH.

Terms of Payment

The prices or allowances to be paid by the contracting party are in EURO and plus statutory sales tax.

PLAMIS iHosting GmbH will charge the fees for delivery and acceptance of the respective contractual services, whereby the contractual partner undertakes to accept them immediately after completion. For orders that include several units (for example, programs, services and / or training, implementation in steps), PLAMIS iHosting GmbH is entitled to invoice each unit or partial service after delivery. The smallest accounting unit is 30 minutes.

For other additional services applies: If the other service provision extends over a period of more than 4 weeks, PLAMIS iHosting GmbH is entitled to make deduction invoices according to performance progress. These are usually done monthly in retrospect.

The invoices issued by PLAMIS iHosting GmbH plus VAT are payable promptly from the invoice date without deduction and free of charge. Advance payments already made are deducted.

The contracting party agrees that invoices from PLAMIS iHosting GmbH will also be sent to him electronically.

Invoices not yet due and payment facilities granted, such as bills of exchange or checks, which have been accepted on account of payment, shall become due immediately, irrespective of the respective term of the contract, if a material deterioration in the contractual partner's financial situation becomes known.

A payment is deemed to have been made on the day on which PLAMIS iHosting GmbH can dispose of it.

Compliance with the agreed payment dates is an essential condition for the further execution of the delivery or fulfillment of the contract by PLAMIS iHosting GmbH In the event of late payment of partial invoices and payment on account of two weeks PLAMIS iHosting GmbH is entitled after a one-time reminder and a grace period of one week, cease the ongoing work and withdraw from the contract. In the case of partial payments, PLAMIS iHosting GmbH is further entitled to assert a loss on time and to pay the entire outstanding invoice amount.

In the event of late payment by the contracting party, default interest in the amount of 8% p.a. above the base rate for settlement. In addition, the contracting party is obliged in the event of default of payment to replace the resulting dunning and collection charges as well as all other associated with the late payment charges.

PLAMIS iHosting GmbH is entitled at any time to make the provision of services dependent on the performance of advance payments or the provision of other collateral by the contractual partner in an appropriate amount.

Other deliveries / services (eg equipment, software licenses, data lines, on-call duty) as well as any contract fees required for the performance of the contract will be billed separately. The costs of program carriers (for example magnetic tapes, magnetic disks, streamer, tapes, magnetic tape cassettes, etc.) as well as any contract fees will also be charged separately.

For standard programs, the list prices valid on the day of delivery apply unless they have been specified in a possible order confirmation. For all other services, contract extensions will be charged according to the workload at the rates valid on the day the service is rendered. Deviations from the time expenditure on which the contract price is based are taken into consideration accordingly by the contractual partners.

The cost of travel, day and overnight money will be charged separately to the contracting party according to the applicable rates. The above rates change according to the price adjustment clause in point 7. Travel times are considered working hours.

All duties arising from the contractual relationship, such as Customs duties, legal transaction fees or withholding taxes shall be borne by the contracting party. If PLAMIS iHosting GmbH is required to pay such fees, the contractual partner shall indemnify and hold PLAMIS iHosting GmbH harmless.

Indexing / Price adjustment

The amount of the remuneration or the price for the ordered services results, as far as nothing else is agreed, from the contract concluded with the contracting party including facilities.

Cost increases (for example, wage and labor costs, training costs, material costs, purchase prices, overhead costs, procurement costs, telephone costs and fees, travel and travel expenses, expenses) or the restriction of subsidies may be passed on to the contracting party in an amount commensurate with the increase. The contracting party must be informed about the causes in a timely manner, whereby this adjustment is made aliquot for the remaining period of this contract year. Should the legal basis for import duties or the like change between the conclusion of the contract and the performance of the contract, PLAMIS iHosting GmbH is also entitled to adjust the prices and / or remuneration in the corresponding amount.

Should the price increase according to point 7.2. per contract year does not exceed 10%, the contracting party has no special right of termination on the occasion of this price increase. In the case of a price increase of more than 10% per contract year, the contracting party is entitled to terminate the contract with a notice period of fourteen days. Otherwise, the changed prices shall be deemed agreed upon expiry of the period of change. Such a right is not available to the consumer who is not a consumer, if the price increase is due only to changing exchange rates, increased labor costs and increased purchase prices for consumables.

An annual value guarantee is agreed for the prices or remuneration contractually agreed with the contractual partner. The calculation of the value stability is based on the monthly consumer price index 2010 published by Statistics Austria or the index which takes its place ex officio. The value-based price adjustment always takes place on 01.01. every calendar year and will take effect automatically. For contracts concluded in the last quarter of a year (between 01.10 and 31.12.), The adjustment is made on 01.01. of the year after next (Example: Contract concluded on 01.10.2017, next index adjustment thus on 01.01.2019). The benchmark used for the adjustments is the index number published for the first day of the year. All rates of change are calculated to a rounded decimal place. The proof of the increase by indexing is led by PLAMIS iHosting GmbH. A price adjustment by PLAMIS iHosting GmbH, which is always omitted for whatever reason, does not mean that PLAMIS iHosting GmbH waives the right to adapt to itself. The fall in prices or reimbursements below the prices agreed in the contracts and appendices is in any case excluded.

On Bill

The contractual partner may only set off claims that are undisputed or recognized in writing or have been legally established by PLAMIS iHosting GmbH.

Any retention of contractual services of the contracting party is excluded. In particular, the contracting party is not entitled to withhold payments to PLAMIS iHosting GmbH for incomplete contractual services or for any warranty, warranty and damage claims.

Rights of use for software products and documents

The contractual partner assures that he has all copyright and / or other rights concerning the works made available by him for the performance of the contractual service of PLAMIS iHosting GmbH and thus does not intervene in any third party copyright and / or other rights.

The contracting party may use the results of the contract services provided after payment exclusively for its own purposes, whereby the use of the results for companies in which the contracting party is significantly involved requires a separate written agreement between the contracting party and PLAMIS iHosting GmbH. Incidentally, all rights of use in all types of use remain with PLAMIS iHosting GmbH.

The contracting party is not entitled, without the written consent of PLAMIS iHosting GmbH, to pass on organizational elaborations, training concepts and training documents, programs or program concepts, offers, service descriptions, etc. or copies derived therefrom to third parties, whether for consideration or free of charge. Specially created programs and organizational services are solely intellectual property of PLAMIS iHosting GmbH. Irrespective of this, the right of use of the same applies - even after payment - exclusively for the own purposes of the contracting party and only for the hardware specified in the respective contract. Any non-disclosure, in whatever legal form, but also any short-term release for the production of reproductions, claims damages, whereby the contracting party always, even with slight negligence, has to give full satisfaction.

In the case of software sold, the contractual partner receives the non-transferable and non-exclusive right to use the sold software in compliance with the contractual specification at the agreed place of installation. This right is only limited to the use of this hardware for self-contained software, exclusively for the hardware defined in the contract according to type, number and location. All other rights to the software are reserved to the licensor. Without its written consent, the contracting party is not entitled, in particular, to reproduce, modify, make available to third parties or use on any hardware other than the contractual hardware, without prejudice to the provisions of § 40 (d) UrhG. Using software products on a network requires a license for each concurrent user. When using software products on stand-alone PCs, a license is always required for each PC. Insofar as the intended use is intended to cover simultaneous use in more than one workplace, this requires an express agreement. The use of software on non-contractual hardware may only be made on the basis of a separate, written and paid agreement.

Software products of third parties provided to the contractual partner by PLAMIS iHosting GmbH primarily apply prior to the provisions of Point 9.4. the respective license terms of the manufacturer of these software products.

If the provision of services by PLAMIS iHosting GmbH and / or the contractual use of the services by the contracting party according to the Austrian legal system violates effective industrial property rights or copyrights of third parties ("property rights"), a third party makes legitimate claims from the infringement of the property rights towards the contracting party PLAMIS iHosting GmbH will support the contract partner in the defense against such claims.

PLAMIS iHosting GmbH will, at its option, modify or replace the service in such a way that no protective rights are violated or give the other party the right to use the services in accordance with the contract. If this is not possible for PLAMIS iHosting GmbH with reasonable effort, PLAMIS iHosting GmbH will inform the other party; within four weeks of notification, the customer has the right to withdraw from the respective service or partial service that violates the property rights. Claims as defined in this point are valid claims, if they have been recognized by PLAMIS iHosting GmbH or have been awarded in a legally concluded procedure.

The contracting party is obliged to otherwise lose all claims:

• 1. inform PLAMIS iHosting GmbH promptly in writing that claims have been made against it for violation of property rights;
• 2. to entrust PLAMIS iHosting GmbH with all defensive measures and settlement negotiations with the third party;
• 3. in the event of litigation PLAMIS iHosting GmbH announce the dispute.

All claims of the contracting party are excluded if:

• 1. PLAMIS iHosting GmbH is not responsible for the infringement of property rights;
• 2. the services provided by PLAMIS iHosting GmbH are not used in accordance with the contract;
• 3. the infringement of the intellectual property rights is due to changes and / or extensions by the contracting party itself or third parties and PLAMIS iHosting GmbH has not agreed to such a change or extension in writing;
• 4. the infringement of property rights are based on special specifications of the contracting party or
• 5. the infringement of property rights was caused by the combination with products not supplied or approved by PLAMIS iHosting GmbH.

The contracting party agrees that the programs commissioned by him into the program library of PLAMIS iHosting GmbH for general use by the PLAMIS iHosting GmbH sales organization will be compensated for the fact that his programs will be considerably more economical and cost-effective through the use of other experiences and documents could have been, as would have been the case without the use of such aids.

Retention of Title

The contractual partner acquires ownership of products and other items delivered by PLAMIS iHosting GmbH as well as all other rights only after full payment of the agreed price. Previously, the contracting party has a provisional, purely contractual right of use.

The contracting party is not entitled to pledge reserved goods or assign them for security. In the event of default in payment, threatened suspension of payments or in the case of foreclosure against the contracting party PLAMIS iHosting GmbH is entitled to dismantle the reserved goods and / or otherwise take back, without this being equivalent to a withdrawal from the contract. The contracting party is obliged to surrender.

In the case of seizure or other use of the reserved goods by third parties, the contractual partner is obliged to point out the ownership rights of PLAMIS iHosting GmbH and to inform PLAMIS iHosting GmbH immediately. All costs and damages incurred by PLAMIS iHosting GmbH as a result of such access by third parties shall be the responsibility of the contractual partner.

Contact Person

PLAMIS iHosting GmbH and the contracting party will provide the necessary number of competent and decision-making contacts for the entire duration of the contract, unless otherwise agreed, but at least two. Decisions necessary for the execution of performance are made by the contractual partner immediately after the decision request has been communicated by PLAMIS iHosting GmbH.

The contracting party shall ensure that the contact persons designated by him or the persons authorized by him are authorized to make binding statements to PLAMIS iHosting GmbH.

The contact persons must be specifically defined and named in the contracts to be concluded.

Performance and Delivery

Information on delivery and service times are generally not binding. Other shall only apply if PLAMIS iHosting GmbH has expressly promised delivery and performance dates in writing as binding. Fixed dates require express written agreement.

Agreed dates are based on an estimate to the best of our knowledge and belief at the time of the conclusion of the contract. In the event of an overdraft of the agreed dates, the contracting party must grant PLAMIS iHosting GmbH a reasonable period of grace.

Delivery or service periods are respected for the contractual services of PLAMIS iHosting GmbH at the beginning of the delivery or service. Shipping is always at the expense and risk of the contracting party. The conclusion of insurance is only at the written request and costs of the contractor.

Unless explicitly agreed otherwise, PLAMIS iHosting GmbH provides all contractual services during the business hours of PLAMIS iHosting GmbH.

Supplements will be charged for the provision of services outside the business hours of PLAMIS iHosting GmbH. These are to be agreed separately.

Any official approvals or approvals by third parties required in connection with the delivery or performance of the service are to be obtained from the contractual partner. If such approvals are not made on time, the delivery or performance period shall be extended accordingly and this can not lead to default of PLAMIS iHosting GmbH. Substantially justified and reasonable changes to the performance and delivery obligations of PLAMIS iHosting GmbH, in particular necessary adjustments to a reasonable delivery or performance period shall be deemed to have been approved in advance by the contractual partner. PLAMIS iHosting GmbH is entitled to make partial or pre-deliveries. If an on-call delivery is agreed, the goods are deemed to be called up no later than 1 year after the order has been placed.

In the case of force majeure, the contracting party, if the respective contracting party wants to rely on it, will inform the other contracting party in writing within 3 months after the occurrence of the force majeure event. Force majeure in the sense of this contract means any influence or circumstance which occurs after the contract has been signed and which is beyond the responsibility of the contractual partners. These include labor disputes, strikes and lockouts; governmental interventions; War, mobilization, revolutions or rebellions; Natural disasters; Fire; Earthquake; Sabotage and terrorism; Embargo; Collapse or major repair of an essential machinery or equipment used directly and indispensably in the manufacture of supplies; Disturbance of the power supply; Failure of means of transport; Failure of telecommunications networks or data lines; Transport accidents or delays; Other uncontrollable events, such as bombs, etc .; Acts, omissions or interventions by public authorities involved in the timely granting of licenses, authorizations or clearances, including any changes in legislation after conclusion of the contract, as well as delays in obtaining such licenses, authorizations or clearances.

Delivery delays and cost increases caused by incorrect, incomplete or subsequently changed information and information or documents made available by the contracting party or the sphere of the contracting party's third parties are not attributable to PLAMIS iHosting GmbH and can not lead to the default of PLAMIS iHosting GmbH to lead. The resulting additional costs will be charged by PLAMIS iHosting GmbH.

Disposal of WEEE

If a contractor domiciled in Austria purchases electrical or electronic equipment for commercial purposes, he assumes the obligation to finance the collection and treatment of WEEE in the sense of the Ordinance on Electrical Waste Equipment in the event that he himself is a user of the ELECTRONIC EQUIPMENT. If he is not the last user, he must transfer the financing obligation in full by agreement to his customer and document this to PLAMIS iHosting GmbH.

A contracting party based in Austria has to ensure that all information is provided to PLAMIS iHosting GmbH in order to fulfill the obligations of PLAMIS iHosting GmbH as manufacturer / importer in particular according to §§ 11 and 24 of the Waste Electrical and Electronic Equipment Act.

A contractual partner domiciled in Austria is liable to PLAMIS iHosting GmbH for all damages and other financial disadvantages that PLAMIS iHosting GmbH incurs by the contractual partner due to missing or insufficient fulfillment of the financing obligation as well as other obligations according to item 13. The burden of proof for the fulfillment of this obligation is met by the contracting party.

Contract Duration and Termination

Contracts with PLAMIS iHosting GmbH are generally concluded for an indefinite period and come into force on the day of the company signature by both contracting parties, unless a different start of service or a different end of service is contractually regulated.

Unless otherwise agreed in the concluded contract, the contract concluded may be terminated by each contracting party subject to a period of notice of 12 months to the end of each calendar year, but not earlier than the end of the minimum term agreed in the contract, terminated by registered letter.

Furthermore, PLAMIS iHosting GmbH is entitled to prematurely terminate the contract for good cause, if essential parameters of the service provision have changed and PLAMIS iHosting GmbH can no longer reasonably be expected to continue the services from an economic point of view.

The right to extraordinary termination remains unaffected. PLAMIS iHosting GmbH is particularly entitled to extraordinary termination if the contractual partner is in default of more than 2 weeks despite reminder and grace period of one week with payments due from a concluded contract. In addition, PLAMIS iHosting GmbH is also responsible for a serious breach of essential contractual obligations by the contracting party, a substantial deterioration in the financial circumstances of the contracting party, relocation of the business or residence of the contracting party abroad or in the case of any breach of existing legal provisions entitled the contracting party to extraordinary termination.

If the reason for extraordinary termination constitutes a culpable and at the same time breach of contract, PLAMIS iHosting GmbH is entitled to compensation.

Notices of termination and extensions of deadlines must be in writing only to be effective.

PLAMIS iHosting GmbH and the contracting party will cooperate in the event of termination of a contractual relationship in order to facilitate the proper transfer of the contractual services to the contracting party or to a third party authorized by the contracting party. Upon termination of the contract, the contracting party must immediately return all documents and documentation provided to it by PLAMIS iHosting GmbH to PLAMIS iHosting GmbH. Similarly, PLAMIS iHosting GmbH has to hand over or destroy all processing results and documents containing data to the contracting party upon termination of the contract. With regard to the termination assistance and its remuneration, a separate agreement must be made.

Warranty

In principle, PLAMIS iHosting GmbH guarantees the proper performance of the contractual services and is responsible for ensuring that the contractual services correspond to those services agreed or assumed between the contractual parties. Without express written consent PLAMIS iHosting GmbH makes no guarantee that the contractual performance for the purposes of the contracting party is economically or technically usable.

The contractual services owed by PLAMIS iHosting GmbH are free from material defects if they correspond to the contractually agreed purpose from a practical point of view. A functional impairment of a system resulting from environmental conditions, operating errors or the like does not constitute a defect. Otherwise, a negligible reduction in the quality is disregarded.

The contracting party must immediately inspect the contractual services performed by PLAMIS iHosting GmbH for defects and quality after rendering the service. Obvious defects must be reported in writing to PLAMIS iHosting GmbH within one week. The complaint is to be reported to PLAMIS iHosting GmbH and such notice of defects may only be made by a competent and authorized person of the contracting party. Notifications in any other way shall only be deemed made if PLAMIS iHosting GmbH has confirmed them immediately in writing or by e-mail. The additional costs incurred in connection with the elimination of errors due to a delayed notification shall be borne by the contracting party. If the contractual partner fails to make such a complaint, the legal consequences pursuant to § 377 (2) UGB shall apply. With regard to any defects arising later, reference is made to the provisions of Section 377 (3) UGB, whereby a period of one week is also agreed here.

The improvement of defects shall be made at the option of PLAMIS iHosting GmbH by elimination / correction of the defect, (subsequent) delivery of a defect-free program or other products or by showing ways in which the defect or the effects of the defect can be avoided. The elimination of defects by PLAMIS iHosting GmbH can also be carried out by telephone, written or electronic instructions to the contracting party. The contracting party will take all necessary measures to investigate or correct the defects or contribute to the extent necessary. If there is no defect with regard to which PLAMIS iHosting GmbH has a warranty obligation, the customer shall reimburse PLAMIS iHosting GmbH for the costs incurred. A remedy of a possible defect by the contracting party itself is excluded.

An equivalent new program version or the equivalent previous program version, which has not contained the defects, is to be taken over by the contracting party, unless this is unreasonable for him.

PLAMIS iHosting GmbH is entitled to make at least two attempts to improve within a reasonable time. The failure of a second attempt at improvement does not necessarily mean the final failure of the improvement. The contractual partner and PLAMIS iHosting GmbH will, in view of the circumstances of the individual case, make efforts to reach an amicable solution with regard to further improvement attempts.

In the case of the final failure of an error correction (improvement), PLAMIS iHosting GmbH will notify the contracting party and ask the contracting party to determine the further course of action within a reasonable time. After the final failure of the improvement, the contract partner is entitled to either lower the agreed price or the agreed remuneration or to demand a cancellation of the contract (conversion). However, if there is only a minor defect, the contracting party is limited to the price reduction.

For errors of standard software and hardware or software and hardware not produced by PLAMIS iHosting GmbH, the regulations for warranty rights of the corresponding license agreement or the contract for the acquisition of updates to the respective products apply. PLAMIS iHosting GmbH only warrants the correct functioning of such software and hardware in certain combinations and applications if expressly agreed in writing. During the warranty period, the contracting party will receive on request free supplementary versions (error corrections of the software manufacturer) of the software including the associated documentation. This does not include newer versions of the software that includes functional enhancements to the licensed software. The installation of supplementary versions is carried out by the contracting party and is not covered by the warranty. Software and hardware support on site by PLAMIS iHosting GmbH is also not covered by the warranty.

For the creation of modules (individually created or adapted software) the warranty rights from the concluded contract apply. PLAMIS iHosting GmbH will eliminate any errors in the program modules created by it as quickly as possible. If troubleshooting proves to be impossible, PLAMIS iHosting GmbH will develop an acceptable fallback solution.

Excluded from warranty are defects that are due to improper or not careful operation, changed system components, use of unsuitable organizational means or unusual system interference by the contractor or third parties. If the defect is based on supplies or co-operation of the contracting party, any gratuitous obligation to remedy the defect is excluded. Furthermore, PLAMIS iHosting GmbH does not assume any liability for errors, malfunctions or damages that result from the use of unsuitable data carriers, hardware, software, abnormal or unusual operating conditions (in particular deviations from the installation and storage conditions), improper use or modifications by the contractual partner or third parties , atmospheric or static discharge, virus stock, natural wear and transport damage. In these cases, the services provided by PLAMIS iHosting GmbH, despite possible limitations, are nevertheless deemed to have been provided in accordance with the contract. PLAMIS iHosting GmbH will undertake a fee-based elimination of the defect at the request of the contracting party.

A warranty period of 6 (six) months is agreed between PLAMIS iHosting GmbH and the contracting party. The warranty period begins with the delivery of the contractual service and must be asserted in court in case of other prescription within this period. In addition, the contracting party must always provide proof that the defectiveness of the contract performance already existed at the time of handover. In addition, recourse to PLAMIS iHosting GmbH in accordance with § 933b ABGB is excluded. For any hardware products of third parties provided to the contractual partner of PLAMIS iHosting GmbH, the respective warranty terms of the manufacturer of these products shall prevail over and above the regulations of this point.

If the contractual partner fails to accept the contractual services for any reason other than a minor defect that severely restricts or makes impossible the use of the contractual service, even though PLAMIS iHosting GmbH has declared readiness for acceptance, the contractual service is deemed to have been properly accepted four weeks after the aforementioned declaration , A not insignificant shortcoming exists if the real operation can not be started or continued. The assistance and error diagnosis as well as error and fault clearance, which are to be represented by the contracting party, as well as other corrections, changes and supplements are carried out by PLAMIS iHosting GmbH against separate offsetting. This applies in particular to the rectification of defects if program modifications, additions and other interventions have been made by the contracting party itself or by third parties.

Insofar as the object of the order is the modification or supplementation of existing contractual services of PLAMIS iHosting GmbH, the warranty only applies to this current contractual object. The warranty for the original contract performance does not come back to life.

Apparent mistakes (typing, calculation errors, formal errors, etc.) in notes, logs, calculations etc. can be corrected by PLAMIS iHosting GmbH at any time. A claim for elimination of such obvious defects is excluded if they are not asserted in writing against PLAMIS iHosting GmbH during the warranty period.

Liability

PLAMIS iHosting GmbH shall only be liable to the contracting party for material damage caused by gross negligence and only up to the amount of EUR 5,000 per loss event caused by PLAMIS iHosting GmbH or one of its vicarious agents or legal representatives. If the backup of information or data is expressly agreed as a service, the liability for their recovery is limited to EUR 3,000 per claim. However, the entire liability of PLAMIS iHosting GmbH for all damages and expenses is limited per contract year with a maximum of 20% of the total fees owed by the contracting party in the contractual year in which the claim arises. The liability of PLAMIS iHosting GmbH or its legal representatives or vicarious agents is unlimited only in case of personal injury. The liability of PLAMIS iHosting GmbH for slight negligence, with the exception of personal injury, is excluded. In addition, any further liability of PLAMIS iHosting GmbH for damages is excluded, in particular the liability for lost sales, lost profits and lost business opportunities and claims for compensation for indirect damage, consequential damages, malfunction, loss of information or data and savings not occurred. Liability under the Product Liability Act and any other legally binding no-fault liability cases shall remain unaffected.

If contractual penalties or claims for payment reduction have been agreed with the contractual partner, all contractual penalties and claims for payment reduction are also covered by the abovementioned total liability limit. However, the assertion of compensation claims exceeding these contractual penalties or claims for payment reduction is excluded in any case.

All claims for damages against PLAMIS iHosting GmbH are to be reported in writing by registered letter within 4 weeks after occurrence of the loss event and at least 6 months after the loss event in case of other prescription.

If a third party is entitled to the contracting party because of an infringement on the part of PLAMIS iHosting GmbH, the contracting party PLAMIS iHosting GmbH undertakes to grant the possibility of remedying the infringement. This can be done by negotiating with the third party or by providing a contract that does not violate the rights of the third party.

The contractual partner is solely responsible for the legality of the use of documents handed over by the contractual partner to PLAMIS iHosting GmbH. PLAMIS iHosting GmbH is not obliged to check the legality of the use. If PLAMIS iHosting GmbH is claimed by third parties due to the use of such documents, PLAMIS iHosting GmbH shall indemnify and hold PLAMIS iHosting GmbH harmless against third parties.

All previously regulated liability limitations shall also apply in the event of a change or any other retroactive elimination or cancellation of a contract concluded with PLAMIS iHosting GmbH.

PLAMIS iHosting GmbH assumes no liability nor does it warrant that the software and hardware supplied by it meets the requirements of the contracting party, that it runs without errors or that all software and hardware errors can be rectified. When setting up firewall systems, PLAMIS iHosting GmbH uses state-of-the-art technology, but does not guarantee its absolute security and is not liable for it. Similarly, PLAMIS iHosting GmbH is not liable for any disadvantages arising from the fact that firewall systems installed at the contract partner are bypassed or rendered inoperative.

Insurance

The contracting party bears the risk for the loss and destruction of all service objects (devices and systems) in use in connection with the services provided which are owned by PLAMIS iHosting GmbH. It is therefore agreed that the contracting party has to insure these service objects against all risks. The contracting party will therefore conclude adequate insurance for all losses, damages and delays in its sphere, in particular fire, explosion, theft, vandalism, water damage and force majeure, and prove the conclusion of this to PLAMIS iHosting GmbH. The contractual partner will transfer the benefits from the insurance contract up to the amount of the outstanding remuneration in favor of PLAMIS iHosting GmbH. The contracting party shall provide proof of this by handing over a signed confirmation of confirmation from the insurer and assigns the claim to the insurance benefit to PLAMIS iHosting GmbH. This is to be reported by the contracting party to the insurer.

Any change in the insurance contract relationship must be reported to PLAMIS iHosting GmbH. PLAMIS iHosting GmbH is authorized to obtain information from the insurer regarding the respective status of the insurance contract, provided that the contractual partner does not comply with his information obligations within one week, despite a reminder under a grace period.

Should the contractual partner fail to meet his insurance obligations and PLAMIS iHosting GmbH deems it necessary to cover these risks, PLAMIS iHosting GmbH is entitled, at the risk and expense of the contracting party, to make a substitute action regarding the insurance conclusion.

Poaching

The contracting party undertakes not to solicit PLAMIS iHosting GmbH employees directly or indirectly for the duration of a contract concluded with PLAMIS iHosting GmbH and for a further twelve months without the express prior written consent of PLAMIS iHosting GmbH. This also applies to the acquisition of PLAMIS iHosting GmbH subcontractors or their employees by the contracting party.

n the event of non-compliance with this provision, the contracting party is obliged to pay a no-fault penalty of EUR 100,000. The assertion of a damage exceeding this contractual penalty remains unaffected.

Confidentiality

The parties agree to maintain confidentiality with regard to details of the concluded contracts as well as confidential information regarding technical, business and operational matters unconditionally and indefinitely (ie even after the conclusion of each contract) to third parties, unless they are generally or otherwise lawfully known to the recipient are or have been disclosed to the recipient by a third party without a secrecy obligation, or have evidently been developed independently by the recipient, or are to be disclosed on the basis of a final governmental or judicial decision.

The companies affiliated with PLAMIS iHosting GmbH as well as subcontractors of PLAMIS iHosting GmbH are not considered as third parties, insofar as they are subject to a confidentiality obligation corresponding to this point.

The same applies to personal data concerning PLAMIS iHosting GmbH or third parties, information according to § 38 Banking Act or § 48a BörseG u. Like., Which become aware of the contracting party in connection with the contract of PLAMIS iHosting GmbH. The contracting party shall protect all such information and results, in particular against access by third parties, adhere to our currently valid data protection guidelines and likewise oblige its employees or third parties to maintain the necessary secrecy.

Right of Withdrawal

In the event of exceeding an agreed delivery time / performance period of 12 weeks by gross negligence of PLAMIS iHosting GmbH, the contracting party is entitled by registered letter to withdraw from the contract in question, albeit within a reasonable to be set by the contractor, but at least two weeks additional grace period , the agreed (partial) service is not provided and the contracting party is not at fault.

Otherwise, cancellations by the contractual partner are only possible with the written consent of PLAMIS iHosting GmbH. If PLAMIS iHosting GmbH agrees to such a contract termination, PLAMIS iHosting GmbH is entitled to charge a cancellation fee of 40% of the not yet invoiced order value of the entire project in addition to the services provided and the costs incurred. The same regulations also apply if the contractual partner sets actions that entitle PLAMIS iHosting GmbH to withdraw from the contract. Further compensation claims of PLAMIS iHosting GmbH remain unaffected.

If, in the course of the execution of the contract, it also turns out that the execution of the contract is actually or legally impossible, PLAMIS iHosting GmbH is obliged to immediately inform the contractual partner. Each party is in this case entitled to withdraw from the contract. The costs and expenses accrued until then for the activities of PLAMIS iHosting GmbH in accordance with the internal project bill to be submitted shall be reimbursed by the contracting party in this case unless PLAMIS iHosting GmbH is at fault for the impossibility.

Succession

PLAMIS iHosting GmbH is entitled to transfer rights and obligations from the contractual relationship with the contractual partner to another company. The contracting party shall not be entitled to terminate any such transfer. On the other hand, the contractual partner may transfer, assign or otherwise pass on all rights and obligations arising from the contractual relationship with the contractual partner only with the written consent of PLAMIS iHosting GmbH.

Any change in the ownership structure, as well as a divestment of the contractor's company entitles PLAMIS iHosting GmbH to terminate the concluded contracts for good cause with immediate effect.

Adhering to the written form requirement

All changes or additions to a contract concluded with PLAMIS iHosting GmbH must be made in writing. This also applies to the waiver of this written form clause. Unilateral declarations require proof of service.

Applicable Law and Jurisdiction

Austrian law applies, to the exclusion of such legal norms, which refer to the law of other states. The application of the rules of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) is excluded.

The place of performance is Mattersburg for both parties. The place of jurisdiction for all disputes, in particular concerning the conclusion of a contract or the claims resulting from the contract, is exclusively the objectively competent court in Mattersburg. This does not affect the possibility to sue the defendant party at its ordinary place of business.

Final Provisions

Should individual provisions of these General Terms and Conditions or of the contract be or become ineffective or unenforceable, this shall not affect the validity of the remaining provisions. Ineffective or unenforceable provisions shall be replaced by mutual agreement by an effective or enforceable provision, whose economic result is as close as possible to the ineffective or unenforceable provision.

The fulfillment of the contract on the part of PLAMIS iHosting GmbH is subject to the condition that the fulfillment of any obstacles due to national or international regulations of foreign trade law and no embargoes or other sanctions.

PLAMIS iHosting GmbH is permitted within the framework of applicable laws to keep this project in a reference list and to advertise it as a reference project and also to use photographs of the contract object or services rendered there, insofar as the non-legally protected or legitimate concerns of the contracting party or the third party.

The negotiation and contract language is German. The contracting party agrees that both technical terminology and software can be written in English.

The information contained in this web site is subject to change without notice.
Copyright © 2024 PLAMIS iHosting GmbH. All rights reserved.

Updated by our Legal Team on Jun. 19, 2019