Terms of Service
of
DSMK • Digital Solutions Marco Kriegner
Dr.-Scheiber-Strasse 51, 4870 Vöcklamarkt, Österreich
SECTION I
General Terms and Conditions
Scope of Application
The customer is not acting as a consumer (definition according to KSchG - Consumer Protection Act). The customer is acting as an entrepreneur (definition according to KSchG). The following conditions apply exclusively to all offers, orders, sales, services, and deliveries, unless otherwise agreed upon in writing or if legal requirements dictate otherwise. Any counter-confirmations of the customer’s conditions are expressly rejected unless confirmed by us in writing.
TIf the customer acts as a reseller, the customer is responsible for ensuring that the provisions of these ToS (Terms of Service) apply mutatis mutandis to their end-customer. The customer is liable for compliance with the ToS by their end-customer.
Digital communication, such as e-mail, is considered "in writing" for the purpose of these provisions.
Conclusion of the Legal Transaction
Orders are only binding if they are confirmed by us in writing, regardless of the initiation or the general manner in which the order was concluded. We execute all orders based on the customer’s submitted information, data, and/or files and following the customer’s written approval.Rights of Disposition
For the production of physical or digital products, as well as the provision of services involving individual texts, images, video, audio data, or other methods suitable for the display or reproduction of material protected by copyright, trademark law, or other rights, the customer declares that they possess the necessary rights for the production, display, or reproduction of the data they transmit. These rights particularly include the rights of reproduction, replication, and assurance that they do not infringe upon any trademark rights, data protection rights, copyrights, or other intellectual property rights. The customer bears sole liability and responsibility for this. In the case of internet redirection services, API interfaces, and other technical connections to third-party systems and infrastructures, the customer declares that they possess the necessary rights and consents required for setup and operation. The customer bears sole liability and responsibility for this.
Contract Language
The contract language is German. Legal texts that have been translated into other languages, including those provided by us, are only valid to a limited extent; only the legal texts in German are valid.
Place of Performance and Delivery Conditions
The place of performance is our company's registered office in 4870 Vöcklamarkt, Austria. Any delivery and/or installation will take place at the agreed address as part of the commission. The customer is obligated to provide an address where they can be reached during the day or at separately agreed times. The costs for deliveries and travel that are returned due to the recipient not being met will be recharged to the customer.
If on-site requirements were communicated in advance and we determine during the attempt to fulfil the order that these have not been met, have been met incompletely, or incorrectly, possible additional costs and expenses will be invoiced to the customer. The customer is liable for any resulting delay or failure to complete the performance.
Access Credentials
The customer is obligated to treat access data as confidential and protect it from unauthorised access. Disclosure to third parties is not permitted. The customer is liable for damages resulting from unauthorised use due to improper storage of access data.
General Data Processing
Please refer to our Privacy Policy.
Deviations and Additional Agreements
Deviations from these General Terms and Conditions, particularly the deletion, modification, or addition of a component, require written form.
Warranty, Guarantee, Compensation for Damages
All products and services have been/are developed, provided, maintained, further developed, and tested with due diligence and expertise. The complete exclusion of sources of error, particularly in hardware and software components, is technically not possible. Improvements must be carried out exclusively by us; if we have not been given the opportunity to make an improvement, the customer is not entitled to claim compensation for any improvement costs.
The statutory provisions on warranty apply. A separate guarantee is not provided. Possible manufacturer guarantees are excluded from this.
Our liability for slight negligence is excluded, with the exception of personal injury. In the case of gross negligence, we are liable up to the amount of the agreed fee for the affected service period, but a maximum of 500 Euros, whichever amount is lower. Claims for damages only cover the pure rectification of the defect and/or damage, but not any further consequential damages and lost profits. No liability is assumed for damages originating from the customer's sphere.
We are not liable for outages, damages, and consequential damages, both direct and indirect, caused by technical defects, manipulation by third parties ("hacker attacks"), or force majeure. We will ensure smooth operation as quickly as possible, in accordance with the state of the art and within the scope and possibilities available to us.
All claims for damages must be asserted in court within six months of becoming aware of the damage. The absolute limitation period is 3 years.
Choice of Law
For all contracts concluded based on these Terms of Service. Austrian law applies exclusively, excluding any possible referral to foreign law. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply.
Place of Jurisdiction
The court with subject-matter jurisdiction at our company's registered office is responsible for all disputes arising from these Terms of Service.
Amendments
We reserve the right to amend these ToS. Customers will be informed of changes in a timely manner. If no objection is received within 14 days, the new conditions are considered accepted.
Technical Assistance and Support
Support services, unless otherwise agreed, are limited to working days during our office hours and are provided to the best of our knowledge. The valid office hours can be viewed on our website. Services beyond this (e.g. emergency support, individual training) require a separate agreement.
Severability Clause
Should individual or multiple provisions of these Terms of Service be wholly or partially invalid at the time the contract is concluded, they shall be replaced by conditions that come closest to the economic purpose of the invalid or inadmissible provision; however, this does not invalidate the entire contract or legal transaction.
SECTION II
Additional Terms for the Use of Web Servers, Domains, and Cloud Products
Use of Storage Space
For certain services and products, e.g. using hosting for storage space or using our SaaS services, it may be legally necessary to establish a DPA (Data Processing Agreement); this applies in particular, but not exclusively, to commercial customers. The customer must check the necessity of a DPA themselves and request one from us if there is a concrete need. We also reserve the right to check the legal necessity of a Data Processing Agreement. The responsibility for determining the necessity of a DPA and the legal compliance of the data and content uploaded to us lies with the customer. The customer is also particularly responsible for creating regular backups of their data; we are not liable for failures or data loss. We support and advise our customers on questions regarding data protection, data security, and the implementation of the General Data Protection Regulation to the best of our knowledge and belief.
In the event of payment default or a justified suspicion of illegal use, we reserve the right to temporarily suspend the affected services. The payment obligation remains unaffected.
Web Hosting, Web Server, and Cloud Storage Products
Service begins immediately after completion of the commissioned product. The minimum contract term is 12 full calendar months. The contract is automatically extended by another calendar month unless a written cancellation is received with a notice period of 14 days before the end of the month. The customer is solely responsible for all types of data backup. Payable annually in advance.
Domain Products and Combined Products Including Domain
Service begins immediately after completion of the commissioned product. The minimum contract term is 12 months. The contract is automatically extended by 12 months with a notice period of two calendar months before the renewal date. The customer is liable for the lawful use of domain names and their components, particularly, but not exclusively, with regard to trademark rights and copyrights. Payable annually in advance.
Availability
We strive for high availability of our services (usually >99% on an annual average), but we cannot guarantee continuous accessibility. Scheduled maintenance work will be carried out outside office hours whenever possible and announced in advance, optionally on our website and/or via email, depending on the scope and expected impact.
Performance Limits
The performance limits agreed upon in the offer or product description (e.g., storage space, bandwidth, number of users) apply within the scope of the respective products. We reserve the right to consult with the customer and/or charge additional costs in case of exceedances.
SECTION III
Additional Terms for the Use of In-house Developed Software and Services
Definition of Terms
The collective term "Software" covers all products and services based on programming activities by DSMK. The type of remuneration is irrelevant.
The collective term "License Fee" describes the costs for the Software that the customer pays to us for its use.
Intended Use
The customer undertakes to use the provided Software and associated hardware and services for their intended purpose. The customer may not make any changes, translations, or reproductions of the Software, nor commission third parties to do so; this applies even partially or temporarily. Unauthorised reproduction also constitutes printing out the program code, as well as testing, reverse engineering, decompiling, disassembling, and/or other methods to influence its behaviour.
If the Software is interfered with without authorisation, we are not liable for any damages, especially not for resulting malfunctions or non-functionality. We undertake to inform the customer about any updates to the Software. The customer has no claim to free updates of the Software.
Further Development
We expressly reserve the right to further develop, use, and sell the Software at will.
Rights
All rights, such as copyrights, property rights, or rights of use, remain with us during and after the commissioned service period, unless otherwise agreed in writing. Unless explicitly regulated otherwise in writing, only simple, non-transferable rights of use are granted for the duration of the contractual relationship. A service period can be unlimited (without a defined end date) in addition to a time span that has a defined end.
Availability
For Software linked to an online or cloud service operated by us, we strive for high availability (usually >99% on an annual average), but we cannot guarantee continuous accessibility. Scheduled maintenance work will be carried out outside office hours whenever possible and announced in advance, optionally on our website, and/or directly in the Software (if possible/applicable), and/or via email.
Further Information
We are happy to assist you with any questions, ambiguities, or requests for further information.
You can find our contact details in our Legal Note.
Date of Version: November 29, 2024