A.K.I.S. GmbH
GENERAL TERMS OF BUSINESS
I. Miscellaneous
Any business transacted with A.K.I.S. GmbH, or Akis, shall − unless otherwise specified, as may be, in individual cases of deviations which are to be revealed by the customer and agreed in writing − herewith be deemed concluded on the following conditions exclusively. The terms of business shall be deemed accepted by the customer upon placing the order additionally to the special conditions of individual transactions even if, in the course of the transaction, deviations are made thereof or, if we have not expressly contradicted the general terms of business of the customer. Any deviations, and oral agreements in particular, as well as any other ancillary agreements except with relation to customers, shall require a written counter-confirmation on the part of Akis for their effectiveness. Without such written confirmation on the part of the latter, any deviations shall remain invalid. E-Mails shall count as written form.
II. Payment
Invoices shall be settled either in cash or by transfer. Unless otherwise stated on the invoice, the due date for payment shall be 30 days. Discounts may only be claimed provided they have been agreed by Akis. In cases of delays in payment, the customer shall pay 14 % interest in arrears per annum. Furthermore, the customer is obliged to pay the charges for reminders and collection necessary for an expedient legal prosecution of the matter. In the context of consumer-based invoicing, the invoicing intervals shall be no more than three months unless provided otherwise following the wish of the customer.
III. Guidelines for web design
A) Transfer of the final product
The transfer of the final product shall be effected either in the form of transfer of a digital storage medium (e.g.: CD-ROM) on the part of the customer, or through copying the relevant files onto a web storage space to be rented by the customer from Akis, or from another internet provider.
B) Right of utilization
In its capacity as the originator of works created for the customer (or as an entity authorised to make use of his right of utilization, respectively) Akis grants an authorisation to the customer to make use of his right of utilization (§ 24 Para 1 sentence 1 of the respective law, “UrhG”) to the extent that internet sites may be reproduced (in abstracto or in concreto), disseminated or made available via the internet.
A transfer of the of the authorisation granted by the contractor shall only be permissible by way of a universal succession. For the rest, all copyrights in the works created by the contractor shall remain with the contractor; the granting/ transfer of any other rights shall be subject to individual contractual stipulations.
Abridgments, additions or other modifications to works created by Akis shall only be permissible rigidly within the spirit of § 21, Para 1 of the cited law, “UrhG”.
Copyright law, § 21 work protection
(1) In the case that a work is used or multiplied for the purpose of dissemination − in a manner which makes it accessible to the public, not even the entity authorised to use the work shall be entitled to make changes to the title or copyright name, or make abridgments, additions or any other modifications unless the copyright holder gives its consent, or provided there is a legal leeway for alteration. Permissible shall mean, in particular, any alterations that cannot be interdicted by the originator vis-à-vis the authorised entity on the basis of the usual customs and manner, i.e. in particular, changes demanded by the kind or purpose of permissible utilization of the work..
(2) The stipulations of Para 1 shall equally apply to originals of the fine arts in cases where these originals are not used in a manner as would make them accessible to the public.
(3) Consenting to modifications not specified in detail shall not hinder the originator to resist misrepresentations, mutilations or other changes to the work that grossly impair originator’s (copyright holder’s) intellectual interest in the work.
The acquisition of the required copyright and/ or other performance protection rights in materials as might be provided for by the customer to the contractor (e.g.: texts or photos), shall be the responsibility of the customer. However, if nevertheless rights of third parties are infringed in the course of the commissioned processing of materials that are protected elsewhere, the customer is obliged to indemnify the contractor.
C) External services
When establishing various concepts, Akis will point our that one or more of them require the use of external products for their processing. In the case that the customer decides to opt for such a concept, he is thus obliged to reimburse Akis for any expenses that accrue additionally through the use of such an external product. Such external costs may also mean any costs as might accrue concerning, possibly, an additional installation of external products.
IV. Guidelines for internet access & services
A) Relevant legislation
1. The customer is obliged to preserve the Austrian legislation also in international data traffic concerning Akis, and to report any infringements thereof to Akis.
2. Furthermore, the customer is obliged to protect Akis against any disadvantage and/ or indemnify Akis in cases of infringements of Austrian or international laws (such as, in particular, the telecommunications act of 2003, the media law, the prohibition law, the pornography law, the copyright law, or the criminal code) as might occur in the context of data or news to be transmitted, disseminated or exposed.
3. The customer shall be, in as far as this is within his sphere of influence, responsible for any activities that emerge from his connection and shall indemnify Akis against any damage that may occur in this context. Full indemnification shall comprise, in particular, any payable fines whatsoever, and the costs for appropriate legal defence.
B) Commencement and termination of contract
Unless otherwise specified, the minimum duration of contract for internet access shall be 3 months and shall renew itself by one month upon the payment of the charge.
C) Payment of charges
Should the agreed charge not have been paid into the account stated on the invoice on time, Akis reserves the right to bar access 14 days after sending out a reminder until payment has been received in accordance with § 70 “TKG” (telecommunications law) 2003. The barring of access shall have no effect on any other outstanding obligations of payment for unterminated periods of performance. In cases of payments in arrears, Akis shall be entitled to additionally charge the usual bank interest in arrears additionally to any fees and expenses that accrue in the first place.
D) Range of performance and exemption from liability
Depending on the product of performance to be rendered, there are varying performance descriptions that can be seen from the Akis website or from the respective order forms.
1. Akis strives at all times to keep its systems as safe as possible, and uses cutting-edge hardware and software. This means that, from time to time, maintenance work has to be carried out which might entail having to switch off one or the other system temporarily. Akis can therefore not give a guarantee for a one hundred per cent availability of its servers or systems.
2. Akis shall be liable for any damage outside the application range of the product liability law only in cases of intention or gross negligence. Liability for slight negligence, compensation for consequential damage, savings not achieved, loss of profit, lost data, loss of interest or damages suffered from the claims of third parties towards clients shall be excluded. However, Akis shall be liable for personal damage caused even if through slight negligence.
3. Unless in cases of intent or gross negligence, Akis shall not be liable for content, completeness, correctness, etc. of transferred data, or for data that is available via Akis.
4. Akis reserves the right to freeze individual publicly accessible offers if the legal stipulations should so require.
5. Akis shall be liable for any damage caused by staff, auxiliary persons or persons otherwise authorised to collaborate only in the case of intent or gross negligence. This applies especially to the area of customer support. Akis is not obliged to take on any liability for damages caused by the lack of necessary telecommunication licenses to be granted by the authority, or through the lack of other authorisations on the part of the authorities, or by the lack of authorisations under private law or the neglect of circumstances which require the consent from a third party.
6. Date of provision of service. Unless otherwise agreed, the provision of telecommunication services shall be carried out within four weeks from the acceptance of the contract on the part of Akis, or four weeks from the point in time that the customer had established all technical and other requirements he was obliged to fulfil. In the case that, for reasons under the responsibility of Akis, the provision of services date is not adhered to and is delayed by more than four weeks, Akis is obliged to grant to the customer a credit to the amount of EUR 12.50 exclusive of VAT per week of such delay. However, this shall not apply if the delay is due to the performance of third parties that are not auxiliary persons of Akis. In either case, any compensation beyond the above-mentioned amount shall be excluded; in the case of consumers, however, only in cases of slight negligence, and not in the case of injury to persons.
E) Data protection
1. Communication secrecy and confidentiality. Akis and its staff are subject to the communication secret legislation in accordance with § 93 “TKG” 2003, and to the confidentiality stipulations under the data protection law under this contract beyond the duration of the same. Personal data or data of the users are not looked at. The customer shall have the right to interdict the processing of personal data. However, this is not in contradiction with a technical storage or with access, for that matter, if the sole purpose is the execution or facilitation of the transmission of electronic data via the Akis communication network, or if it is about making available a service to a customer which he ordered in the first place. Any routing and domain information must be passed on accordingly.
2. Information according to § 96 Para 3 “TKG” 2003 concerning processed data and master data. On the basis of the data protection law and “TKG” of 2003, the contractual partners herewith agree to store, process or pass on master data only within the framework of rendering of performances, and only for the purposes under this contract. Such purposes are: the conclusion, execution, modification to or termination of the contract with the customer, settlement of the charges, or granting of information to emergency service providers according to § 98 “TKG” of 2003. On the grounds of § 92 Para 3 item 3 and § 97 (1) “TKG” of 2003 Akis shall be authorised to determine the following personal master data of the customer and participant, and to process the same: first name, family name, academic degree, residential address, date of birth, company, e-mail address, telephone and facsimile numbers, other contact information, creditworthiness, information concerning the type and content of the contractual relationship, terms of payment and receipts of payment as an illustration of the contractual relationship. Master data shall, in accordance with § 97 Para 2 “TKG”, be deleted by Akis upon termination of the contractual relationship with the customer, at the latest, unless this data is still required for invoicing or charging processes, the processing of complaints or fulfilment of other legal obligations.
3. Transmission data. Akis shall store access data and other personal transmission data as required in the context of establishing or invoicing charges from a technical point of view, as well as for checking the functionability of services and facilities; in particular of the source and destination ISPs and all other log files that are subject to the legal requirements as under § 99 (2) “TKG” of 2003 until the expiry of that deadline within which the invoice can be legally contested, and claims for payment be established or, respectively, as long as the checking of functionability is required. In the case of dispute, Akis shall make available this data to the competent facility or institution and shall, until a final decision has been made, not delete the relevant data. For the rest, Akis shall delete or anonymise transmission data immediately after the completion of the relevant connection.
4. Contents-related data shall not be stored by Akis. In as far as an interim storage is necessary for technical reasons, Akis shall immediately delete any stored data once the reasons to do so have elapsed. If the storage of contents is a feature of the service to be rendered, Akis shall delete the data immediately upon completion of the relevant performance.
5. Data transfer in the context of payment by credit card. Furthermore, the customer grants his consent that, in the case he desires payment by credit card, all invoicing details be communicated to the respective credit card institute as required.
6. The customer herewith agrees to be willing to receive information from Akis concerning products and services by e-mail to an appropriate volume and amount. The customer shall have the right to revoke this declaration of agreement at any point in time. ISP shall grant the possibility to the customer in each advertising e-mail to reject the receipt of any further news.
7. Akis shall undertake various technical precautions to protect customers whose data is stored with Akis. However, Akis shall not be liable if third parties appropriate such data illegally, or use it further. Akis shall not be liable for any damaged or lost data or files. The assertion of claims of the contractual party or of third parties towards Akis from a context of this kind shall herewith be excluded.
F) Software
1. Akis takes over no guarantee whatsoever for software classified as “freeware", "public domain", "demo" or "shareware". Attention must be paid to any utilisations of use or possible license regulations issued by the program author for the relevant software.
2. Akis shall take no guarantee for a smooth functioning at all times of the installed software or compatibility with all installed programs or hardware arrangements (unless there is a missing spirit of the warranty performance legislation).
G) Objections to invoices & litigation assistance
Any objections against invoiced items shall be made by the customer within 30 days of the invoicing date; otherwise the claim shall be forfeited. Akis shall point out this deadline to the consumers and shall, in cases of non-coherence, point out any legal consequences thereof to them. In the case that after a check on the part of Akis the objections asserted by the customer should not prove right from the point of view of the contractor, the customer shall initiate an arbitration procedure within 1 month of the receipt of a statement from Akis with the regulating body (Rundfunk- und Telekom-Regulierungs GmbH), and shall take legal action within a further month of the resultless completion of the arbitration procedure.
In the case that the customer does not wish to initiate an arbitration procedure, he shall, within three months from the receipt of a statement from Akis, take legal action or otherwise forfeit his right of assertion. Akis shall point out these deadlines to the consumers and shall, in cases of non-coherence, point out any legal consequences thereof to them.
Irrespective of the competence of ordinary courts, customers may submit incidents of litigation or complaint (concerning the quality of the service rendered, or unsatisfactorily settled payment disputes , or an alleged infringement of the “TKG” of 2003) to the relevant government authority.
1. Akis is obliged to take part and collaborate in such a procedure, and to provide all information required for an assessment of the situation and, if necessary, to provide the relevant documents. The regulating body shall establish a unanimous solution or, failing that, communicate to the parties its view concerning the case matter put before it.
2. Dueness of the invoiced amount in cases of objections. Objections do not disqualify the dueness of the invoiced sums. However, if the competent regulating authority (Rundfunk- und Telekom-Regulierungs GmbH) is appealed to for arbitration and settlement, this will delay the dueness of the owed sum in question until the final settlement of the dispute. In any case, a sum corresponding to the average last three undisputed invoiced sums shall be due immediately also in this case.
3. Lump sum consolidation in the case of final charge disputes. In the case that an error is stated which is to the disadvantage of the customer and the correct final charge cannot be determined, the customer shall have to pay a charge corresponding to the average of the last three invoiced sums or, if the business relationship had, at that point in time, lasted for less than three months, to the last invoiced amount.
H) Termination
1. Akis shall be entitled to rescind the contract if
a) bankruptcy proceedings have been instigated against the contractual partner or if the initiation of such proceedings are rejected merely on the grounds of a lack of sufficient assets;
b) the user repeatedly violates the so-called "netiquette" (http://www.usenet.at/netiquette.html), this including undesired advertising or spamming (“aggressive direct mailing”), the abuse of the services for the transfer of threats, obscenities, harassments or the unlawful harm of other participants.
2. Irrespective of any claims for compensation on the part of Akis, services or part services already rendered − even if the contract has been rescinded by Akis − shall be invoiced and paid under the terms of this contract. This shall also apply if performances have not yet been taken over by the customer and shall also include any preparatory action taken by Akis.
I) Netiquette (http://www.usenet.at/netiquette.html)
1. The customer agrees to the international customary rules of behaviour. In the case that other users launch complaints about the relevant contractual partner to Akis, the latter shall be entitled, in the case of repeated such actions, to terminate the contractual relationship.
2. In the case of contravening such a decision, Akis may interlock the access of the customer without giving reasons and without any prior information to the customer.
J) Changes to the general terms of business and charges
Insofar as changes to the general terms of business are not exclusively to the advantage of the customer, a notification of such changes shall be made at least two months prior to the entering into effect of these new provisions. In this case, Akis shall communicate to the customer a crucial summary of contents at least one month prior to the effectiveness of such changes by transmitting the same in an appropriate form, as, for instance, the imprint onto a periodically established invoice. Simultaneously, Akis shall inform the customer that he is to rescind the contract free of charge any time before the effectiveness of such changes. Akis reserves the right within two weeks of the receipt of the termination on the part of the customer, to state that it wishes to adhere to the contract in the form observed so far. In this case, the termination is rendered invalid.
Akis shall communicate to the customer this possibility to continue the contractual relationship at the conditions so far enjoyed and shall point out that, in this case, the termination of the same is rendered invalid.
K) Miscellaneous
1. All communications and statements concerning this contractual relationship shall only be valid if they are in written form, this including the form of e-mail. The stipulation under §10 Para 3 “KSchG” (consumer protection law) shall be unaffected by this.
2. Digital signatures on the part of Akis shall be deemed legally valid.
3. Akis shall be entitled at its own risk to commission third companies with the rendering of performances from this contractual relationship.
4. The customer shall communicate any changes to his name or identification made known to Akis before; or any change of address (or offices) or legal form or company register number immediately or within a month of the change, at the latest. Any written materials sent to the customer by Akis and addressed to his latest revealed address shall be deemed received by the customer.
5. This contract shall remain overall legally valid even if individual clauses and conditions should turn out to be ineffective. However, this shall no be the case if adherence to it would entail an unreasonable hardship for one of the contractual partners.
6. The customer is obliged not to disclose the access data for his access to Akis and services thereunder to third parties, and to keep secrecy concerning his password. The customer shall be liable for any damage caused on the grounds of a lack of secrecy of the passwords or passing on thereof to third parties. Akis is willing to replace forgotten passwords with new ones at request. Any suspicion of unwarranted use of access through third parties shall be communicated to Akis without delay.
V. Registration of AT domains
In the case of AT domains registered by Akis with nic.at (i.e. the Austrian domain administration ) at the request of the customer, Akis solely functions as mediator.
For the customers, the registration of an AT domain automatically establishes a contractual relationship with nic.at, and the general terms of business of Nic.at GmbH become applicable (http://www.nic.at/agb).
Akis is not obliged to check the legal permissibility of the domain, e.g. the right to bear a name or use a trademark. The customer agrees to comply with the relevant provisions laid down by law and, in particular, not to infringe any trademark rights. The customer undertakes to fully indemnify Akis in this respect.
VI. Place of fulfilment and legal venue
The only applicable law shall be Austrian law (with the exclusion of any transfer of action). The place of fulfilment shall be Vienna. The legal venue for any dispute arising from or in connection with this contract shall also be Vienna. In the case of consumers, §14 “KSchG” shall apply.
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