Terms & Conditions

1. General

1.1 These General Terms and Conditions (GTC) apply to all supplies and services that Gemik Software GmbH (hereinafter referred to as ‘service provider’) provides to the client.   All references to persons in these Terms and Conditions such as ‘service provider’, ‘client’, etc., include men and women alike.

1.2 The mutual rights and obligations of the contract parties are governed solely by the content of the order accepted by the service provider and these Terms and Conditions as well as all other possible separately agreed upon GTCs.  Information contained in catalogs, brochures, etc. shall only be deemed binding if expressly agreed upon in written form.

1.3 These terms and conditions also apply to future transactions between the parties, even if future contracts do not make reference to them.  This clause does not apply to consumer transactions.

1.4 The invalidity of individual stipulations of these terms and conditions does not affect the validity of the remainder.  In place of the invalid stipulation, an effective one shall be used, which is as close as possible to the economical and legal meaning and purpose of the former one. Changes to the terms and conditions will be communicated to the client. They will be deemed accepted if the client does not contradict them in detailed form within 4 weeks of receiving notice.   In contractual relationships with consumers, this is only applicable if the consumer has been expressly informed of the legal significance of the omission of a written objection at the beginning of the filing period. The terms and conditions as well as all contract forms can be obtained from the service provider free of charge.  The current terms and conditions are published on the service provider website at www.gemik.com.

1.5 A contractual relationship between the parties is considered agreed upon when the service provider (after receipt of order, instruction or offer) has received written confirmation, has mailed a delivery to the address last known by the service provider, or has begun the actual provision of service.

1.6 If the client gave their contract declaration in a space not usually used by the service provider for his/her business purposes, or at a trade show, and did not initiate the business relationship with the service provider and the formation of the contract was preceded by meetings between client and service provider, then he/she is entitled, in accordance with the relavant provisions of the Consumer Protection Act, to withdraw from the contract statement of intent to the conclusion of the contract.  After conclusion of the contract, the client has a period of one week to withdraw from the contract. This period begins from the time the contract is formed. The cancellation requires written declaration sent directly to the service provider Gemik Software GmbH, Am Kanal 27 2/3/8
A-1110 Vienna, to have legal effect.

1.7 Clients can withdraw from a distance contract or a remotely submitted contractual declaration (for example one ordered via mail or fax or per order form online) within 7 business days. Saturday does not count as a working day. The withdrawal period begins with the date of delivery of the ordered products, or, in the case of provision of services, with the date of contract. The withdrawal is considered timely if it was sent within the deadline. There is no right to withdrawal from contract in accordance with §5 f KSchG in certain cases, particularly for products that have been manufactured according to the client’s specifications, as well as with opened software.  If a service was agreed with the client to be made available within 7 working days, the client is also not entitled to withdraw from the contract.  The service provider will notify the client of this exclusion of the right of withdrawal during the agreement in question. If the client withdraws from the contract according to  § 5 e KSchG, he/she must bear the cost of return shipment.

1.8 The provisions of point 1.7 apply to contracts concluded at a distance, and to transactions made by electronic means, provided that a direct relationship between Gemik Software GmbH and a client is concluded within the meaning of the Consumer Protection Act. When doing business via the Internet with third parties, there are also no obligations for Gemik Software GmbH, even if Gemik holds the technical equipment (account, server, etc) necessary for the business contact.

1.9 Clients are advised that essential information regarding Gemik Software GmbH are made available online. Insofar as the information referred to in § 5c KSchG does not appear directly related to the offered services, then this information can be viewed on the Gemik website at www.gemik.com.

2. Prices and Payment

2.1 Unless otherwise agreed upon, the quoted prices that appear in the offer/order form/contract apply. Unless otherwise agreed upon, these prices are exclusive of VAT. Clients are given gross prices.

2.2 The fees are composed in particular of telecommunications lines and server costs, interconnection costs, energy costs, labor costs, space costs, fees and taxes. Should these cost positions change, the service provider reserves the right to change costs relevant to the calculation.

The following applies for clients: If the underlying costs change by circumstances which can not be influenced by the service provider, then the cost will increase or decrease accordingly. However, payment increase may not be imposed to clients for services that should be performed within 2 months after signing the contract.

Furthermore, the service provider (without prejudice to any claims for damages and subject to the right to early termination) always reserves the right to change prices at any time and immediately, should there be unusually high querying from the client’s website located on the service provider’s site or in cases of unusually high data transfers with unlimited access.   The service provider will communicate price changes to the client. In this case, the client has 2 weeks (from the time of notification of the price change) to challenge the termination of contract, otherwise the price change is considered binding.   In the event of termination by the client, point 3.3 shall apply correspondingly.

2.3 Unless otherwise agreed upon, payments are due promptly and without deductions upon receipt of invoice.  The invoicing dates result from the contract, order or purchase order. In case of doubt, non-recurring costs can be settled immediately after conclusion of the contract or delivery. Ongoing costs that are independent of consumption can be settled monthly in advance. Ongoing costs that are consumption-based can be settled monthly in arrears.

2.4 Gemik Software GmbH reserves the right to send billing documents electronically based on the digital signature.

2.5 The service provider is, in case of delayed payment, allowed to charge for all necessary expedient legal costs and default interest in the amount of 6.5% from the date of delay.

2.6 If payment is made by credit card, the holder must ensure that the card is not locked or expired, otherwise he/she will be accountable for resulting delays and default interest may be charge at the clients expense.  The service provider assumes that the client will have their credit cards renewed in a timely manner.

2.7 The client may not offset outstanding claims from the service provider with unsettled receivables and may not refuse payments due to alleged claims that have not been unaccepted by the service provider.

Amendment of point 2.6 applies to consumer transactions: Offsetting with outstanding claims against the service provider is only possible if either the service provider is insolvent, the reciprocal claims are in a legal context, the counterclaim is established by a court, or it is recognised by the contractor.

For valid reasons, the client must ensure the service provider of payment through an advanced payment of 2 monthly statements (in cases of continuous debts) or via bank guarantee letter from a domestic financial institution or with a corresponding prepayment (for individual projects). The service provider reserves the right, after one reminder, to be paid out of the security provided according to legal utilisation regulations.

2.8 The client shall not have the right to refuse his/her contractual obligations according to § 1052 of the General Civil Code (ABGB) to obtain or secure compensation, and his/her rights to refuse fulfilment of obligations are generally excluded.  This clause does not apply to consumer transactions.

3. Contract duration

3.1 Contracts made between the contract parties relating to the ongoing use of services or other continuing services are agreed upon for a definite or indefinite timespan. Contracts that are made for an indefinite period can be terminated in writing or electronically by both parties with 1 months notice.  In cases of contracts made for definite periods, this automatically extends for the original contract period unless it is terminated by a contract party with written or electronic notice – subject to the 1-month period of notice.

Clients are expressly and punctually informed of their right to termination and, in case of failure to exercise, the legal consequences (contract extension).  If there is no agreement about a termination waiver, contracts made for indefinite periods can be terminated with two months notice at the end of the month. For contracts made for an indefinite period or for a fixed period of more than a year, clients are also entitled to a legal right of termination by giving two months’ notice at the end of the first year.  The following rights of the service provider in case of delay of payment remain unaffected.

3.2 Compliance with the agreed payment dates is an essential precondition for the provision of services by the service provider. The service provider is therefore entitled, at his/her discretion,  to suspend services or terminate the contract with immediate effect in case of delay of payment after unsuccessful reminder in writing or electronically with a deadline of 2 weeks.

3.3 The internet service provider (ISP) is also entitled to immediately terminate the contract or service or switch off the service if the customer’s or his/her attributable persons’  behaviour make the continuation of the contract unconscionable. This is especially true if the customer infringes on his/her obligations  pointed out in points 6.4 to 6.4, does not remove unauthorised devices from the power supply despite requests from the ISP, and if ‘netiquette’ does not comply. The choice between termination of contract, mere service interruption or switch-off is made at the discretion of the ISP.

3.4 All cases of immediate termination of the contract, of interruption of services or disconnection of services for reasons attributable to the client’s sphere, shall leave unaffected the right of the ISP to service charges for the term of the agreement until the next possible termination date as well as to the assertion of claims for damages.

3.5 The client is expressly informed that the termination of the contractual relationship, regardless of reason, results in the service provider no longer being obliged to continue providing the agreed service.

The client shall thus solely be responsible for the timely retrieval of such content data prior to termination of the contract. The customer cannot derive any claims against the service provider from the deletion of data. This is especially true since the relevant provisions of the Telecommunications ACT (BGBl. NR. 100/1997 as amended) allow the storage of content data only temporarily, provided that this is necessary for technical reasons.

4. Data protection

4.1 The service provider will save the following personal master data from the client and participants in accordance with the Telecommunications Act: Academic degree, first name, last name, date of birth, company, address, telephone and facsimile numbers, industry, occupation, request date, payment terms and payment receipts in order to keep the contractual relationship updated.  The service provider will also process data using an automated system according to legal regulations and delete data upon completion of the contract, unless another storage method is necessary to meet the legal obligations of the service provider. According to the Telecommunications Act, the service provider can create a public subscriber directory including names, surnames, academic degree, company, address and internet address. This entry can be omitted entirely or partially upon express request of the client. Furthermore, the client shall allow the service provider (until cancellation), the inclusion of his/her name in the company reference list.

The service provider will only save personal traffic data that are necessary for the production of connections and the calculation of fees – particularly source and destination IP as well as other log files – only under the relevant legal requirements, to the extent necessary, and within the legal framework. The service provider can also conduct access statistics within the legal framework. For technical reasons, the service provider will only store content data temporarily and in the minimum amount necessary.

4.2 The service provider and its staff are subject to the secrecy of the Telecommunications Act in accordance with the Act and the confidentiality obligations of the Privacy Act.  However, routing and domain information must be passed on.

4.3 The client acknowledges that the service provider is not required or not permitted to store certain content (from third parties) and make it available for the client for an unlimited period.   Should the client not request this data within 3 business days, then the service provider cannot accept any liability for further accessibility.

4.4 The client acknowledges that the service provider may be required, under legal regulations, to cooperate in the interception of telecommunications.  The service providers actions based on this obligations cannot produce any claims by the client.

5. Data security

5.1 The service provider will take all technically feasible and reasonable measures to protect the data stored.  The service provider is not responsible if a third party does manage to unlawfully gain access to the data. In order to ensure the necessary protection of data, the customer is obligated to keep passwords secret. The client is liable for all damages that arise from the breach of this obligation. The client is responsible for backing up their data unless otherwise agreed upon. The service provider recommends that the client use a firewall system and a virus wall system.

6. Specific Customer Obligations

6.1 The client is expressly advised of the regulations of the Pornography Act, the Prohibition Act, the Copyright Act and the other, relevant laws, in particular criminal and competition laws, according to which the placement, distribution and display of certain content is unlawful or prohibited.  The client agrees to comply with all laws and to assume sole responsibility against the service provider for compliance.

The client undertakes to fully indemnify the service provider should the latter be held liable for contents brought into the market by the client. Should claims be made against the service provider, then he/she has the sole deciding power regarding response, without the client responsible for the content having any right to raise objection of insufficient defense.

6.2 In particular, the client is to take all necessary precautionary measures to prevent persons under 18 years to be granted access to content prohibited to them by law via the online service.

The client undertakes to comply with the provisions of the Telecommunications Act and the relevant standards in the current version, especially the omission of telecommunications equipment for services subject to notification requirements without prior notification or for services subject to licensing.

6.3 The client is generally obliged not to use contractual services in any way that may jeopardise the security or operation of third parties or of the service provider or that would in any way impair others. Accordingly, the following is prohibited: unsolicited advertising and spamming (aggressive direct mailing via email) or any use of the service for transmitting threats, obscenities, harassment or harm to other Internet users; further if the client shows, compared to memory space used by him/her, a proportionately high data transfer  or performance characteristics above the individually listed scope of the contract.

The client further undertakes to immediately inform the service provider of other claims for damages, should (either in court or out of court) claims be made against him/her from use of the contractual services.

6.4 The service provider is entitled to immediately terminate the contract or to either interrupt the service or to switch off the service if the continuation of the contract is made unconscionable because of the clients behaviour or the behaviour of persons attributable to the client, in particular if the client breaches his/her obligations according to 6.1 to 6.3 or if the client does not immediately remove troublesome or unauthorised devices from the power supply despite being requested to do so.

All cases of immediate dissolution of the contract, of interruption of services or disconnection of services shall leave unaffected the claim of the service provider to service charges for the term of the agreement until the next possible termination date as well as to the assertion of claims for damages from the misconduct of the customer. The choice between termination of contract, mere service interruption or switch-off is made at the discretion of the service provider.

6.5 The client acknowledges that the service provider has no unlimited obligation for data transfer. There is also no obligation if the service provider would otherwise expose itself to the risk of legal prosecution.  If the service provider becomes aware of spamming by customers of the other providers, it is entitled to temporarily cease data transfer to the client of other providers entirely.

6.6 The service provider is not liable for contents that are conveyed through its network by third parties or for contents made available by them to the subscriber or third parties through the network service.

7. Using third party software

7.1 If third party licensed software is used, the client is obliged to read the license provisions prior to use and to strictly observe them.

7.2 The delivery of standard software by the service provider is subject to the specified conditions in individual cases. In case of doubt, the client will only be granted an open-ended, non-exclusive, non-transferable usage license. Rights to use standard software which are grated against payment of a periodic fee for use return to the service provider upon repeal of the agreement, but no later than in cases of delay of payment of remuneration despite written notice. With regard to sub-licensed software from the service provider to the the client, the contracting parties agree to exclusion of warranty and liability, especially for software errors. The latter provision does not apply to consumer transactions.

7.3 No responsibility or liability is taken by the service provider for software retrieved by the client that is classified as ‘public domain’, ‘freeware’ or ‘shareware’ and that was not created by the service provider. The client must observe the licenses and terms of use indicated by the author of such software and shall  not pass on this software to third parties – not even for short-term use.

7.4 In all cases, the client entirely indemnifies the service provider and holds them free and harmless against claims for breach of above obligations.

7.5 Services concerning the availability of platforms for electronic transactions (e-commerce) are provided by the service provider according to the agreed contract terms and supplementary to these terms and conditions. The contracting parties agree to the exclusion of all warranty for software defects, provided that errors occur in software or software parts that have not been programmed by the service provider or its employees. The client must assure themselves of the functionality of the services offered and examine the software features separately.

The contract partner of the end customer is always the respective provider (customer of the service provider) in such e-commerce offers. The respective provider is also solely responsible for compliance with all legal provisions (in particular in relation to its own customers).

8. Delivery and development of software by the service provider

8.1 In cases of software specially developed by the service provider, the scope of performance shall be determined by a service description (system analysis) signed by both contracting parties. The delivery includes the program code to be executed on the designated equipment as well as a program description.  The rights to the programs and documentation shall entirely remain with the service provider.

8.2 The client acknowledges that minor defects from the nature of the contractual object cannot be ruled out entirely.  The service provider assumes no warranty that the software supplied meets all requirements of the client (unless explicitly laid out in the agreement), that it is compatible with other programs used by the client, that the programs run without interruption and errors nor that all software errors can be corrected.

Warranty is limited to reproducible (permanently repeatable) errors in the program for software supplied to entrepreneurs.

8.3 The above points 7.2, 7.3, 7.4 and 7.5 apply accordingly.

8.4 Should the service provider supply both hardware and software at the same time, any errors in the software shall not entitle the client to withdraw from the contract regarding the use or supply of the hardware. This does not apply to consumer transactions.

8.5 Delivered software remains in full property of the service provider until the complete payment has been received. This is especially true for software developed specially by the service provider.

9. Special provisions for firewalls/virus walls

9.1 With firewalls/virus walls that were installed, operated or check by the service provider, the service provider must proceed with the utmost attention and use the most current technology. However, the service provider also points out that absolute security and full functionality of firewalls/virus walls cannot be guaranteed.

9.2 The liability of the service provider is therefore excluded for any disadvantages that arise from the fact that the firewall/virus wall system installed or checked at the client are bypassed or disabled, as well as for system failures and access difficulties.

Amendment of 9.2 applies to consumer transactions: In the given context, the service provider’s liability for damage is excluded only for slight negligence.

10. Delivery of hardware

10.1 Delivered goods remain property of the service provider until payment has been received in full.

10.2 Unless otherwise agreed, the warranty period is 2 years.

10.3 The service provider shall remedy defects falling under warranty at its discretion by either making improvements or by providing replacement goods/services.  Rescission of contract or price reduction are excluded by mutual agreement. The warranty expires if repairs or modifications have been made by third parties.

These conditions apply to consumer transactions.

10.4 Should the client withdraw from the contract for reasons beyond the service provider’s control, then the service provider is entitled to reimbursement of the proven expenses incurred, but no less than 20% of the net value of the agreed order. The service provider’s right to claim exceeding damages remains unaffected. Legal action to reduce the penalty is excluded with entrepreneurial business.

10.5 In the absence of a separate agreement, all prices are valid ex warehouse of the service provider and exclusive of packaging and loading. The client must pay all fees that are due in connection with the delivery.  If shipment with delivery is agreed upon, then a chosen transport insurance will be charged.

10.6 Warranty claims require that the client immediately reported defects in a detailed manner and in writing. This provision does not apply to consumer transactions.

10.7 The following defects are excluded from warranty:  Defects resulting from placements and mountings not carried out by the service provider, insufficient set-up, non-observance of installation requirements and terms of use, exceeding of the limits given by the service provider, incorrect treatment and use of inappropriate operating materials. The service provider is not liable for damages that are due to atmospheric discharges, over voltages and chemical influences. Warranty shall not include replacement of parts which are subject to natural wear and tear.

10.8 Unless otherwise agreed, the delivery period begins with the last of the below points in time: date of order confirmation, date of fulfilment of all client conditions (technical, commercial and other).

10.9 It is established that, in addition to any guarantee, legal warranty obligations exists and, through the warranty, legal claims are not restricted.

11. Special provisions for services

11.1 The service provider operates the services it offers according to the principles of utmost diligence, reliability and availability.  However, for technical reasons, it is impossible to ensure uninterrupted access to these services, to always establish the desired connections or to ensure the availability of stored data under all circumstances. Permanent availability of the transmission systems and therefore services related to this cannot be guaranteed and are beyond the service providers control. IP-connectivity to other network operators is made in accordance with availability. No liability is assumed for issues resulting from problems in the networks of third parties. The usage of other nets is subject to limitations in regard to carrier usage (Acceptable Use Policy). The service provider also reserves the right to restrictions due to limited capacity; user limitations are only accepted if they are reasonable, objective and justified and due to reasons independent from the service provider.  Internet service accessibility may be limited or interrupted in the event of force majeure strikes, restriction of services by other network operators or repair and maintenance activities. User warranty claims remain unaffected. Furthermore, unless otherwise agreed, the monthly data volume restrictions or fair-use rules mentioned in the contract or annexes, apply. If the monthly data volume restrictions are exceeded, the service provider reserves the right to charge the current price for this amount of data according to the current price list, or to interrupt the service.  In the case of exceeding the amount of data as part of a fair-use agreement, the service provider will request that the client limit the data transfer accordingly. Should this not be carried out, the service provider will offer a different pricing model or interrupt the service.

11.2 The service provider is not liable for the content of data transferred, or for content of data that are available due to the contractual services from the service provider – not even if the client obtains access to these via a link from the service provider’s website.

11.3 Use of the services provided under this contract by third parties as well as the passing on of these services against payment to third parties requires prior written and explicit consent from the service provider.

11.4 These terms and conditions apply to user contracts for network services insofar as these contracts do not stipulate otherwise expressly agreed provisions.

11.5 The client is obligated to keep passwords secret. He/she shall be liable for damage caused by insufficient protect of the passwords by the client or from passing them on to third parties.

11.6 Costs resulting from the use of transmission facilities to the selected point of presence, the accumulating costs at the site of the contract partner, the costs of equipment provided by the service provider at the point of presence for the exclusive use of the client are not included in the listed prices.  Costs that are charged by third parties for the use of services that can be accessed via the terminal at the point of presence are also not included in the costs.

12. Special provisions for domain registration

12.1 The service provider provides and reserves the requested domain in the name and on the account of the client, provided that the domain has not yet been assigned. For .at, .co.at and .or.at addresses, the domain is established by the Austrian registration authority  ‘nic.at’. Any other addresses are installed by the relevant registration body.

The service provider shall be the invoice recipient and the technical contact for the term of this agreement regarding domains managed by nic.at unless otherwise agreed; however, the contractual relationship for the installation and administration of the domain shall always be directly between the client and the registration body. The registration costs, transferred to the registration body, are included in the amount invoiced to the client by the service provider unless otherwise agreed. With domains that are not managed by nic.at, billing is carried out directly between the client at the domain management establishment, unless otherwise agreed. In this case, the service provider charges the client the registration fee, for the technical equipment as well as an administration fee (according to the price list).

12.2 The customer acknowledges that the contract between the client and the registration body does not automatically end upon dissolution of the agreement, but rather that the customer must terminate it separately with the registration body.

12.3 With regard to the domain, the General Terms and Conditions of nic.at (available at www.nic.at) or any other relevant registration body shall apply. The service provider will send this to the client upon request.

12.4 The service provider is not obligated to examine the admissibility of the domain such as with regard to protected trademarks or names. The client agrees to comply with the relevant legal provisions and, in particular, not to infringe anyone’s rights to a name, trademark or other rights and indemnifies and holds the service provider harmless in this regard.

12.5 With new registrations of used domains, the client is obliged to announce all configurations, particularly MX and WWW records. Claims for damages cause by the absence of the above information cannot be claimed against the service provider.

13. Liability

13.1 The service provider is liable under general toll laws.  As far as arriving at fault for the liability, liability is only taken in cases of intentional or gross negligence, with the exception of personal injury.  In cases of slight negligence, the service provider is not liable for consequential damages and lost profits. In any case, the amount of damages is limited to the amount listed in the contract.

13.2 The services provided, as well as the goods, equipment and facilities supplied only offer the safety that can be expected from licensing regulations, operation and operating instructions or other regulations regarding maintenance and management, particularly with regard to mandatory equipment and system checks or due to other evidence.

14. Other provisions

14.1 Verbal side agreements do not exist. All supplements and amendments of the contract must be in writing otherwise being null and void.   This section 14.1 does not apply to consumer transactions (the terms ‘consumer’ and  ‘consumer transaction’ are used in accordance with the provisions of KschG).

14.2 All notifications and declarations made by the client affecting this contract are only valid if they are made in writing and not contradicted by the service provider.  This provision 14.2 does not apply to consumer transactions.

14.3 This agreement is subject to Austrian law. Provided that the client is not a consumer and that the consumer protection law does not stipulate otherwise, all disputes regarding this agreement will be decided exclusively within the jurisdiction and location of the service provider (Vienna).

14.4 The service provider is authorised to assign its duties, in full or in part, with discharging effect, to an adequate and sufficiently qualified third party and shall notify the client of this. This does not apply to consumer transactions. The service provider is entitled, at its own risk, to commission third party companies with the rendering of services from this contractual relationship.

14.5 The client must immediately notify the service provider of name or address changes. Written documents are considered received by the client if they were sent to the last known address given by the client.