Applicability of the General Terms and Conditions and conclusion of contract
COOKIS enters into contracts exclusively on the basis of these GTC. These therefore always form an integral part of the contract.
The GTC also apply to future business between COOKIS and the customer, even if they are not expressly referred to again.
General terms and conditions of customers will only become part of the contract if they are expressly acknowledged in writing by COOKIS. In particular, COOKIS is not obliged to object to the customer’s general terms and conditions to the contrary.
Offers from COOKIS are always made without obligation. Cost estimates are non-binding.
The contract between COOKIS and the customer is concluded upon confirmation of the order by COOKIS.
Subject matter of the contract
COOKIS provides the customer with the Software for the duration of the term of the contract concluded with the customer, in accordance with the following provisions of these GTC, and provides the additional services described below.
As part of this contract, the customer is granted the right to access the Software, which is hosted on a third-party server, via telecommunications and to use the functionalities of the Software via a browser. The customer does not acquire any further rights to the Software. In particular, the customer has no claim to the installation of the Software on their systems or to the provision of the source code of the Software.
The customer has no claim to customisation of the Software to meet their individual needs.
As part of the customer’s use of the Software, the customer’s website data is hosted on a third-party server. For this purpose, the customer is provided with storage space on the third-party server in the basic scope as specified in a separate service description. The provision of the storage space is already included in the fee under section V. If the customer exceeds the basic storage space, the customer owes COOKIS a fee in accordance with COOKIS’s current price list.
In addition, the customer is provided with a domain server on the third-party server for use for the customer’s website, as well as a mail server for up to 5 mailboxes with storage space as specified in a separate service description. The remuneration for these services is already included in the fee under section V.
It is the customer’s responsibility to ensure that the hardware and software environment required for access to the Software is available on their side.
The Software uses third-party software, in particular TYPO3. COOKIS reserves the right to change the third-party software used at any time. The use of the third-party software is not the subject of the contract between COOKIS and the customer or these GTC. Any claims due to defects and the like attributable to the third-party software used are excluded against COOKIS.
The Software may only be used by the customer themselves for the purposes of websites operated by them. The customer is prohibited from sharing access (passwords, etc.) with third parties.
Content created by the customer on the website/mail server/domains
The customer is solely responsible for the content of the website created using the Software and stored on the third-party server. The customer is prohibited from using the Software or the additional services for unlawful purposes. COOKIS reserves the right to remove unlawful content or prevent access to it.
The customer shall indemnify and hold harmless COOKIS and the third party on whose server the website data is hosted against all claims raised by other third parties against COOKIS or the third party due to content of the website created by the customer. This includes the costs of legal defence.
The provisions of the preceding points shall apply mutatis mutandis to all email traffic on the mail servers provided to the customer and to the domains provided to the customer.
Data protection
If the customer collects personal data of third parties as part of the use of the Software or other additional services under this contract, the customer warrants that they are entitled to do so under the applicable data protection regulations and shall indemnify COOKIS against any claims by third parties in the event of a breach. COOKIS or the third party on whose server the website data, as well as the mail and domain servers, are hosted, act as data processors vis-à-vis the customer under the Austrian Data Protection Act and are obliged to comply with the obligations under § 11 of the Austrian Data Protection Act.
Fees and payment terms
The customer owes COOKIS a fee for the services provided by COOKIS as described in more detail in these GTC, in accordance with COOKIS’s current price lists.
COOKIS reserves the right to adjust the fees with effect from the beginning of the next contract year (section VI).
The fees owed by the customer are invoiced by COOKIS at the beginning of the annual contract term for the entire contract year in advance.
All prices are exclusive of statutory VAT.
All payments are due within twelve days of receipt of the invoice and without deduction.
In the event of late payment, the contracting parties agree on default interest at a rate of 12 % p.a. COOKIS is entitled to engage a debt collection service or legal assistance to collect its outstanding receivables. The customer undertakes to reimburse COOKIS for all costs incurred in this regard.
If the customer does not raise any written objections to the invoice within 2 weeks of receipt of the invoice, the invoice shall be deemed to be acknowledged both in terms of its basis and amount.
The customer is not entitled to set off claims against COOKIS unless the alleged outstanding claims have been expressly acknowledged in writing by COOKIS.
The customer is not entitled to withhold payments due to warranty claims or other counterclaims not expressly acknowledged by COOKIS.
- It is expressly agreed that the claim plus ancillary claims shall be index-linked. The consumer price index 2020 (base year 2020) published monthly by Statistik Austria or any index replacing it shall serve as the measure for calculating the index-linking.
Contract term and termination
Unless otherwise expressly agreed in writing between the contracting parties, the contract with the customer is concluded for a term of 12 months.
The contractual relationship is automatically extended by a further 12 months or the originally agreed contract term, unless one of the contracting parties informs the other contracting party in writing at least one month before the expiry of the contract that they do not wish to continue the contract.
In the event of late payment, COOKIS is entitled to terminate the contractual relationship with immediate effect after setting a grace period of two weeks. COOKIS is also entitled to terminate the contract with immediate effect if the customer breaches their obligations under sections II.7, III.1 or IV.1.
In the event of termination of the contractual relationship, for whatever reason, the customer’s ability to use the Software and the additional services ends with the termination of the contract. In particular, the customer’s website will no longer be accessible on the internet and the mail server will no longer be available upon termination of the contract. COOKIS is also not obliged to continue storing the customer’s data (in particular website data, emails, etc.) stored with COOKIS or on the server of a third party. It is therefore the customer’s responsibility to ensure timely retrieval, backup or further storage of such data upon termination. Upon request, COOKIS will provide the customer with the website content in compressed storage format, with the customer acknowledging in advance that this may restrict the functionality of the website. COOKIS will not perform any migration of the data to systems or software environments of third parties. The takeover of the SaaS solution Bakehouse is excluded.
COOKIS is entitled to delete or arrange for the deletion of all customer data after the expiry of one week following termination of the contract. No claims can therefore be made against COOKIS for loss of data.
If there are outstanding claims against the customer, COOKIS is also entitled to release the customer’s data to them only once the customer has paid the outstanding claims in full. For this purpose, COOKIS is entitled to block the customer’s access to the data at the time of contract termination or, in the event of late payment, simultaneously with setting the grace period.
Warranty and liability
COOKIS does not guarantee continuous accessibility or complete error-free operation of the Software. In particular, there may be occasional program crashes or similar issues. Therefore, an error in the Software as described above does not constitute a defect within the meaning of §§ 922 ABGB. A warranty claim regarding a defect in the Software only exists if COOKIS has expressly warranted certain properties of the Software that are not met, or if the error leads to a significant impairment of the functionality of the Software.
COOKIS endeavours to rectify identified defects in the next update. However, the customer has no claim to updates being carried out within a specific period or to defects being rectified at short notice. If defects do in fact completely exclude the proper functionality of the Software, COOKIS will rectify these within 3 weeks of identifying the defect at the latest.
To use the Software, the customer must use the services of third parties, in particular the services of an internet provider. COOKIS excludes any warranty or liability for the inability to use the Software or for defective use of the Software that is attributable to such third parties.
The liability or warranty of COOKIS for defects or damage (in particular due to data loss or unavailability of the Software, the customer’s website or the mail server) attributable to the third party on whose server the Software, the website data and the mail and domain servers are hosted, in particular the liability under § 1313a ABGB, is excluded by mutual agreement vis-à-vis the customer. However, for the purpose of directly asserting claims against the third party, COOKIS assigns to the customer the claims arising from the contract concluded between COOKIS and the third party.
All warranty claims of the customer are limited to improvement. Reduction of the purchase price or withdrawal from the contract are excluded by mutual agreement.
The liability of COOKIS for slight negligence and for indirect damage, in particular consequential damage including data loss and lost profits, is generally excluded. The above warranty exclusions also apply as liability exclusions.
The customer must take appropriate technical precautions to prevent or reduce damage due to data loss. In particular, the customer must regularly store (archive) their email traffic hosted on the third-party server as part of the contract with COOKIS on their own systems.
Final provisions
Amendments or supplements to these GTC or the contract/order require written form.
COOKIS reserves the right to amend these GTC. The amended GTC will take effect upon the customer’s receipt of the amended GTC, unless COOKIS specifies a later date. In the event of subsequent amendments to the GTC, the customer is granted the right to terminate the contractual relationship with COOKIS with one month’s notice within 14 days of receipt of the amended GTC, failing which this right shall lapse.
Austrian law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded by mutual agreement.
For all disputes arising from or in connection with contracts between COOKIS and its customers, the jurisdiction of the competent court at COOKIS’s registered office is agreed. However, COOKIS is entitled, at its discretion, to bring claims against the customer before the court competent for the customer’s registered office.
COOKIS is entitled to assign the contractual relationship or parts thereof to its legal successor or to third parties with discharge from liability.
The invalidity of individual provisions does not affect the validity of the remaining provisions of these General Terms and Conditions. The place of the invalid provision shall be taken by a valid provision that comes closest to the invalid provision in terms of its economic purpose and intent.
Landeck, August 2014
