General terms and conditions of business
I. General provisions
§ 1 Elements of the contract
(1) The contractual relationship between MOODDESIGNER OG (hereinafter referred to as ” MOODDESIGNER “) and the customer shall be concluded either in writing or via the Internet (online by way of distance selling). In each case, the published provisions on fees (EB), service descriptions (LB), general terms and conditions (AGB) and the applicable provisions of the Telecommunications Act 2003 (TKG) shall apply. The aforementioned contractual components shall apply in the order listed, with descending priority.
(2) The application of the customer’s general terms and conditions is excluded. Conflicting terms and conditions of the customer shall not bind MOODDESIGNER even if MOODDESIGNER does not object to them. The customer’s attention is expressly drawn to the fact that the sales employees are not authorized to make agreements that deviate from the GTC, EB, LB, TKG and ECG.
§ 2 Justification of the contractual relationship
(1) The contractual relationship is established on the basis of a written or electronic offer via the customer’s Internet using the order form provided for this purpose and acceptance by MOODDESIGNER by way of performance, i.e. installation or acceptance of the installation package. The customer shall receive a copy of the written offer. If the contract is concluded on the Internet, the customer will receive the electronic contract transmitted.
(2) When submitting the offer, the customer is obliged to present both an official photo ID and a registration form or an excerpt from the commercial register (or similar proof of his entrepreneurial status), as well as to provide proof of the existence of a power of signature or representation, if applicable, and to prove an Austrian bank or credit card account by presenting the corresponding customer card(s). In the case of online registration, these documents shall be presented upon request by MOODDESIGNER.
(3) MOODDESIGNER shall be entitled
a) to make acceptance of the offer dependent on an appropriate security deposit from the customer in a form to be determined by MOODDESIGNER (e.g. security deposit, bank guarantee, etc.) or on an appropriate advance payment of fees;
b) to check the customer’s details and his creditworthiness at any time by obtaining information from recognised organisations authorised to do so (credit protection association, etc.), whereby the customer may revoke his consent at any time;
c) to reject the offer in justified cases, but in particular if the customer is in arrears with payments from an existing, previous or other contractual relationship, or has provided incorrect or incomplete information which is of significance for the assessment of his creditworthiness, or if there are justified doubts about his creditworthiness due to other circumstances, or if there is a justified suspicion that the customer has misused or will misuse the connection.
§ 3 Amendment of the contract
(1) Unless otherwise specified in these GTC for individual products, changes to contractual components or fees must be announced at least two months before they take effect in accordance with §§ 14, 15 of these GTC. The customer can also be notified by e-mail to the e-mail address provided. The customer will be informed in a suitable form at least 1 month before the changes to the contractual contents on which the contracts are based that do not exclusively benefit him/her and is entitled to terminate the contract free of charge until the time the change comes into force.
(2) The customer may notify MOODDESIGNER in writing or electronically via the Internet of requests for changes to the contract (such as the use of additional services), blocking orders, changes to his master data and other notifications. The information travels at the risk of the customer. If this results in a change in the scope of services, the contractual fees shall be adjusted at the time of the change in the scope of services, unless this is separately regulated elsewhere in the GTC.
§ 4 Duration of the contract
(1) The contractual relationship is concluded for an indefinite period of time, subject to any provisions to the contrary in accordance with § 5 of these General Terms and Conditions, and may be terminated in writing by either party to the contract with effect from the last day of a calendar month, subject to a period of notice of three months. The postmark shall be decisive for compliance with the termination date.
(2) Furthermore, MOODDESIGNER shall be entitled to terminate the contractual relationship with immediate effect by means of a corresponding declaration if
a) the customer is in default of payment of the fee despite a written reminder threatening to interrupt or shut down the service and setting a grace period of two weeks; or
b) insolvency proceedings are opened against the customer’s assets or the opening of such proceedings is rejected for lack of cover. MOODDESIGNER may request the liquidator to provide an appropriate security deposit or advance payment for all fees and claims arising from the opening of insolvency proceedings. If the liquidator takes over the security deposit, advance payment or a personal liability declaration within the period of notice, the notice shall be deemed to be withdrawn; or
(c) the customer’s connection is misused; or
d) other circumstances exist which make it unreasonable for MOODDESIGNER to continue the contractual relationship.
e) there is a violation of $9 of these General Terms and Conditions, or other violations of copyright regulations, whether contractual or legal (including regulations of the collecting societies).
(3) MOODDESIGNER may withdraw from the contract in writing before the connection is established if a connection cannot be established for technical, economic or legal reasons.
§ 5 Special provisions for contracts with a minimum contract duration
(1) For contracts with a minimum contract duration, an ordinary termination in accordance with § 4 (1) is excluded before the minimum contract duration expires. Any minimum contract duration shall be agreed separately on the order form.
(2) If the customer nevertheless terminates the contractual relationship, such a termination in breach of contract is effective, but the customer must pay the sum of the outstanding basic fees for the period between the termination of the contract and the end of the agreed minimum contractual period.
(3) In any case, MOODDESIGNER’s claim for further damages remains unaffected.
§ 6 Extraordinary right of termination by the customer
The customer is entitled to dissolve the contractual relationship with MOODDESIGNER by written declaration if
a) the scope of services contained in the respective service description is not complied with in essential points despite proven written request by the customer over a period of two weeks, or
b) there are changes to the fees on which the agreement is based or to other contents of the agreement (the provision of § 3 GTC shall apply with the proviso that the customer’s notice of termination shall be ineffective vis-à-vis MOODDESIGNER if MOODDESIGNER agrees to waive a change to the agreement vis-à-vis the customer within 4 weeks of receipt of the notice of termination).
§ 7 Services provided by MOODDESIGNER
(1) The services are provided by MOODDESIGNER on the basis of the respective service description and the respective valid fee regulations.
(2) Network failures, malfunctions, maintenance work or other unavoidable events for which MOODDESIGNER is not responsible may lead to unavoidable interruptions in the provision of services. An uninterrupted operation cannot be guaranteed and is not owed. MOODDESIGNER will, however, make every effort to eliminate disturbances and interruptions as quickly as technically and economically possible. Short-term disruptions and interruptions do not entitle the customer to a reduction of charges.
§ 8 Services of the customer
(1) The customer may only use end devices which correspond to the interfaces displayed by MOODDESIGNER and which cannot cause any interference in the MOODDESIGNER network or in other networks.
(2) The customer owes (or is liable for) the fee from communication services for all services which are subject to the agreement and which are provided via his connections, regardless of whether the services were used with or against his will.
(3) The customer shall immediately notify MOODDESIGNER in writing of any changes to his name, address, billing address, bank details or credit card number as well as his legal form. If this change notification is not made, documents shall be deemed to have been received by the customer if they were sent to the address or paying agent last notified by the customer.
(4) The customer shall provide any power connection required for the provision of the services free of charge. Electricity consumption shall be borne by the customer.
(5) The customer is obliged to provide an Internet connection with a bandwidth of at least 56 Kbit (if possible DSL, cable or dedicated line with at least 256 Kbit). The connection must be available for at least six hours a day at times of day specified by MOODDESIGNER.
(6) Upon conclusion of the contract, the customer is obligated to provide the Internet settings (valid static IP address or the possibility of obtaining it via DHCP, name server data, any proxy servers) of the connection location. If no Internet connection is established despite the preset device, MOODDESIGNER may call in a network technician. The customer shall bear the costs incurred for this. If no connection can be established, MOODDESIGNER shall be entitled to withdraw from the contract.
§ Article 9 Liability
(1) MOODDESIGNER shall be liable in accordance with the provisions of civil law, in particular the provisions of compensation and warranty law. Liability for slight negligence, except for personal injury, is excluded. Liability for loss of profit is excluded.
(2) MOODDESIGNER shall not be liable for the consequences of disruptions or interruptions to services in any case if these are due to reasons in the sense of § 7 paragraph 2 of these terms and conditions and not due to intent or gross negligence on the part of MOODDESIGNER.
(3) Cancellation and price reduction shall be excluded if MOODDESIGNER remedies defects primarily by reworking or replacement within a reasonable period of time.
(4) The customer must handle the playback device with care. The playback device has built-in components that are sensitive to vibration, moisture and heat and must therefore be set up free of vibration. The customer must also ensure that other influences such as moisture, steam and heat are exposed to a reasonable extent. He is also prohibited from opening the device. If the device is damaged – whether by fault or not, by accident or by third parties – as a result of an unsuitable installation site, physical impairment, improper operation of the device, opening and the like, the customer shall be liable for the repair costs up to 100% of the new price according to the respective new price stated on the Internet (currently EUR 400). The customer is also liable for the loss or destruction of the device, whether by accident, theft or any other cause. In this case, the customer shall reimburse MOODDESIGNER for the price of the new device, whereby MOODDESIGNER undertakes to provide the customer with a replacement device as soon as possible. Delivery difficulties do not entitle the customer to assert any claims for a reduction in payment or compensation. MOODDESIGNER is entitled to offset claims arising from damage, destruction or loss against the deposit, whereby the customer is obligated, in the event that the deposit is used, to replenish it to the original level upon request by MOODDESIGNER.
(5) The customer is prohibited from passing on, renting, selling, lending or otherwise passing on to third parties in any form whatsoever the data material provided and/or the data carriers used for data storage.
§ 10 Terms of payment
(1) The production fee, the pro rata monthly base fee and other one-off fees may be invoiced immediately after the provision of services. Basic charges and other fixed monthly charges shall be invoiced in advance. All other fees are basically to be paid according to the due date after provision of the service and after invoicing, the interval of which – with the exception of individual agreements – is a maximum of 3 months. If the contractual relationship or an agreement for an additional service is terminated during a calendar month for a reason for which MOODDESIGNER is not responsible due to gross negligence or intent, MOODDESIGNER shall be entitled to charge the agreed monthly basic fees and other fixed monthly fees in full for the month in question.
(2) The fees are to be paid by bank transfer, direct debit or direct debit authorization procedure. Fees shall be due for payment upon receipt of the invoice. MOODDESIGNER shall be entitled to charge the customer for processing costs of up to 20% of the fixed monthly basic fees for each unpaid direct debit or return debit.
(3) In addition, MOODDESIGNER shall be entitled to charge the customer for each reminder the necessary and appropriate administrative reminder fees incurred in the amount of Euro 17.00. If the customer does not meet his payment obligations despite a reminder, he shall pay default interest at the rate of 12% p.a., as well as the actual reminder and collection expenses incurred for appropriate collection (whereby MOODDESIGNER may also use third parties for appropriate prosecution) and legal costs. The customer is expressly informed that MOODDESIGNER reserves the right to hand over the prosecution of the claim to a collection agency or a lawyer after the first reminder stage.
(4) The customer may only offset claims of MOODDESIGNER against claims of MOODDESIGNER if they have been established in court. MOODDESIGNER shall be entitled to offset a security deposit provided by the customer against any claims against the customer, regardless of their title.
(5) In the absence of a dedication by the customer, payments shall be dedicated at the discretion of MOODDESIGNER if several contractual relationships exist.
(6) Any objections by the customer to invoices must be made to MOODDESIGNER in writing within four weeks of receipt of the invoice. Failure to raise objections within the above-mentioned period shall be deemed to constitute acceptance of the invoice. Should the customer’s objections prove to be unjustified after an examination by MOODDESIGNER, the customer shall take legal action within one month of receiving MOODDESIGNER’s statement, otherwise the right to assert objections shall be lost.
(7) If a billing error is found which could have had a detrimental effect on the customer and the correct fee can no longer be determined, a flat fee will be prescribed which is calculated according to the average extent to which the customer has used the service during the last three billing periods.
8. Services shall be charged pro rata temporis from the date of connection or provision of the service concerned. If, for reasons for which the customer is responsible, the prerequisites for the installation of the hardware and software for the use of an ordered service are not met, MOODDESIGNER shall be entitled to invoice the customer separately for the additional work required for additional installation dates.
§ 11 Security deposit, blocking
(1) MOODDESIGNER shall be entitled, even during the upright contractual relationship, to make the provision of services dependent on a reasonable security deposit or reasonable advance payment to be provided by the customer, in an amount to be determined by MOODDESIGNER, if
a) the customer is more than 14 days in arrears with the payment of fees already due or
(b) the current remuneration not yet due for payment is more than twice the average comparable monthly remuneration.
(2) Without prejudice to further rights according to the law or the GTC, MOODDESIGNER is entitled in its own interest and in the interest of the customer to partially or subsequently refuse to provide services in whole or in part (blocking) after prior notification of the customer if
a) the customer is in arrears with payment of the fee after a previous one-time reminder, setting a two-week grace period and threatening to interrupt or shut down the service,
b) the customer fails to provide the requested security deposit or advance payment in accordance with § 11(1) GTC within a reasonable period of time,
(c) the customer’s connection is misused by him or a third party,
d) insolvency proceedings are opened against the customer’s assets (or the initiation of such proceedings is rejected for lack of assets) or the prerequisites for such proceedings are met. MOODDESIGNER can request the liquidator to provide an appropriate security deposit or advance payment for all fees and claims which arise from the opening of bankruptcy proceedings. If the liquidator takes over the security deposit, advance payment or a personal liability declaration within the period of notice, the block will be lifted.
e) a fact, which represents an objectively justified reason for rejection in the sense of § 2 para. 3 lit. c) of the GTC, comes to the knowledge of MOODDESIGNER,
f) the customer violates essential contractual obligations or circumstances for which the customer is responsible exist which make the provision of further services unreasonable for MOODDESIGNER,
h) the customer does not allow the troubleshooting or maintenance by MOODDESIGNER or
i) the customer carries out interventions in the system himself or has them carried out by third parties.
(3) The block shall be lifted immediately if the reasons for the block cease to apply and the customer has reimbursed MOODDESIGNER for the costs of the justified block and its lifting. The justified block does not release the customer from the obligation to pay the fixed monthly fees. The assertion of claims for damages due to unjustified blocking is limited to cases of intent and gross negligence.
§ 12 Transfer of the contractual relationship
The customer is only entitled to transfer rights and obligations from the contractual relationship to third parties with the written consent of MOODDESIGNER. The new customer shall be jointly and severally liable, in addition to the previous customer, for claims for remuneration and compensation for damages that have arisen up to the time of occurrence.
If a third party takes over a connection without MOODDESIGNER’s consent, it shall be liable for claims for fees and damages in addition to the customer, who shall be liable under contract law, from the time of the takeover in accordance with the principles of enrichment law.
At the request of the customer, the third party willing to enter will be informed of the existing arrears up to 1 week before the request and without any discounts from the contractual relationship in question. No interim invoice can be issued. A fee of up to 50% of the monthly fee shall be paid for each takeover.
§ 13 Announcement of the AGB
The general terms and conditions and the service descriptions and fee regulations relevant for the services of MOODDESIGNER as well as any changes to these (§ 3) are published on the internet and are available for inspection in the offices of Mooddesigner OG.
§ 14 Changes to fees, changes to services
MOODDESIGNER is entitled to change or adapt fee regulations, service descriptions and general terms and conditions in compliance with legal provisions and the conditions set out in these general terms and conditions (see § 3 GTC).
§ Section 15 Final provisions
(1) Austrian law shall apply.
(2) Place of payment and performance is Vienna.
(3) It is agreed that the exclusive place of jurisdiction shall be the competent court in Vienna.
(4) Amendments and supplements to this contract can only be agreed in writing or electronically via the Internet. Likewise, all declarations concerning the contractual relationship must be made in writing or electronically via the Internet.
(5) In the event of legal invalidity of individual points of the contractual components described in § 1 of these General Terms and Conditions, the remaining provisions and the contracts concluded on the basis of these provisions shall remain valid. In this case, the customer and MOODDESIGNER agree to replace the ineffective provision with a mutually agreed effective provision that comes as close as possible to the ineffective one.