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General Terms and Conditions

General Terms and Conditions

Please note: This English text is a convenience translation. Only the German version is legally binding.

As of October 2023. Provider: myDC Cloud Services GmbH, Dr.-Franz-Wilhelm-Straße 2, 3500 Krems an der Donau · www.myDataCenter.at · office@myDataCenter.at

This page reproduces the General Terms and Conditions in their full wording. The text is identical to the PDF version; the version in force at the relevant time shall govern, and it is also available for download at the end of this page.

Contents

1 Subject Matter and Scope of Application

1.1The general terms and conditions of business and delivery of myDC Cloud Services GmbH (hereinafter referred to as “myDataCenter.at”) apply to all services, service offerings, service provisions and deliveries which myDataCenter.at renders to the client (hereinafter referred to as the “Customer”). They also apply to all future transactions, even if no express reference is made to them. myDataCenter.at concludes contracts in this regard, or accepts orders in this regard, solely subject to the application of these general terms and conditions of business and delivery.

1.2myDataCenter.at makes the services available only to businesses and not to consumers within the meaning of § 1 KSchG (Austrian Consumer Protection Act). Use of the services by consumers is not permitted.

2 Commencement of Contract, Contract Term and Termination

2.1A contractual relationship between myDataCenter.at and the Customer comes into existence once myDataCenter.at, after receipt of the order placed via the online shop, has issued a written order confirmation or has commenced the actual provision of services (e.g. disclosure of user login and password or setup of a virtual server, etc.).

2.2For the calculation of periods relating to the minimum contract term and the duration of any waiver of the right of termination and the like, in all cases in which no express contractual stipulation thereof has been made, the first day of the month following the commencement of the provision of services shall be deemed to be the commencement of the contract.

2.3Unless a different contract term has been agreed, the minimum contract term for all myDataCenter.at products is 12 months or corresponds to the billing period selected in the web shop, if that period is longer than 12 months. The contract is automatically extended by a further 12 months, or by the billing period selected at the time of ordering, unless it has been terminated 3 months before the end of the contract in writing by letter signed by a person authorized to sign.

2.4The Customer warrants that the information provided by him in the course of the contract offer or the conclusion of the contract concerning his person and other circumstances relevant to the contract is complete and correct. The Customer undertakes to notify myDataCenter.at without delay of any changes to the data. Upon a corresponding request by myDataCenter.at, the Customer shall confirm the data. In the event of a breach, myDataCenter.at is entitled to block the contractual services with immediate effect.

2.5In the case of orders, a separate contract is concluded for each product or service, which means that in the event of a termination or a withdrawal, each item must be terminated or withdrawn from individually.

2.6The Customer may transfer the contract with myDataCenter.at and the rights and obligations arising from this contract to a third party, provided that myDataCenter.at consents. The previous Customer and the new Customer are liable as joint and several debtors for fee claims and claims for damages that have arisen up to the time of the transfer.

2.7The use of the contractual service by third parties, as well as the transfer of these services to third parties for consideration, requires the express written consent of myDataCenter.at. If a resale has been agreed, resellers are in any case obliged to pass these terms and conditions on to their contractual partners and shall indemnify and hold myDataCenter.at harmless in this respect. At the request of myDataCenter.at, the reseller shall immediately provide evidence of the passing on of the contractual obligations.

2.8In the event of a transfer of business pursuant to Section 38 UGB (Austrian Commercial Code), the companies involved (transferor, acquirer) undertake to notify myDataCenter.at thereof in writing without delay. In such a case, myDataCenter.at has a right of objection. If the entrepreneurs involved fail to give this notification, they are liable as joint and several debtors for all fee claims and claims for damages arising from the contract with myDataCenter.at.

2.9The Customer is expressly advised that upon termination of the contractual relationship, for whatever reason, myDataCenter.at is no longer obliged to continue the agreed service.

3 Rights and Obligations of the Customer

3.1The Customer expressly undertakes to comply with the relevant statutory provisions, in particular those of the Austrian Telecommunications Act (TKG). In particular, any use of the services which endangers public order and security or morality, or which violates laws, as well as any gross harassment or intimidation of other users, is prohibited. Any legal violations noticed must be reported to myDataCenter.at.

3.2The Customer undertakes to indemnify myDataCenter.at against any damage arising from the messages and data placed into circulation by him, in particular against private prosecutions for defamation (Section 111 StGB, Austrian Criminal Code) or insult (Section 115 StGB), in proceedings under the Mediengesetz (Austrian Media Act) or the Urheberrechtsgesetz (Austrian Copyright Act).

3.3When using the services, the Customer is obliged to comply with Austrian and international legal provisions and to impose this obligation also on his contractual partners who support him in the provision of services, and to take all technically and organizationally possible measures to prevent the unlawful use of the services offered. Express reference is made to the provisions of the Pornografiegesetz (Austrian Pornography Act), the Verbotsgesetz (Austrian Prohibition Act) and the relevant provisions of the Strafgesetzbuch (StGB), according to which the transmission, dissemination and display of certain content is subject to statutory restrictions. The Customer undertakes to observe these legal provisions and to assume sole responsibility towards everyone for compliance with these legal provisions.

3.4Content may not contain or refer to information offerings which are capable of damaging the reputation of myDataCenter.at.

3.5myDataCenter.at may include names, companies and internet addresses as well as the type of services offered by customers in a reference list and may also make this list available to other customers and interested parties upon request. The Customer has the right at any time to revoke the publication (by written request).

3.6The Customer is responsible for all activities irrespective of fault and shall indemnify and hold myDataCneter.at harmless in respect of all damage arising. The complete indemnification and holding harmless also covers, in particular, penalties to be paid, of whatever kind, and the costs of an appropriate legal defense.

3.7myDataCenter.at and the employees of myDataCenter.at are obliged to comply with the DSG (Austrian Data Protection Act) and, with regard to those services which are subject to the TKG 2021, are subject to the special duty of secrecy and to the data protection provisions under Chapter 14 TKG 2021.

3.8myDataCenter.at takes all proven and customary measures corresponding to the state of the art in order to protect the data stored at myDataCenter.at. However, myDataCenter.at is not responsible if someone succeeds in obtaining this data in an unlawful manner and using it further.

3.9The Customer agrees that myDataCenter.at verifies the Customer’s identity and stores certain data before providing the respective service. Before provision, myDataCenter.at stores as master data of the customers and end users at least title, first name, last name, company, VAT identification number (UID), address, city, postal code and contact information (e.g. email address) and payment terms, and keeps records of payments received as well as amounts invoiced. The Customer shall provide myDataCenter.at with an email address which is used for the transmission of invoices and hereby consents to invoices being sent electronically.

4 Termination Rights and Suspension of Services

4.1Both parties have the right to extraordinary termination at any time if good cause exists.

4.2myDataCenter.at is entitled to terminate the contract extraordinarily, and good cause within the meaning of section 4.1 of these GTC exists in particular if:

4.2.1the Customer is in default, in whole or even only in part, with payments due despite a qualified reminder and the setting of a grace period of 14 days.

4.2.2the Customer repeatedly or intentionally breaches material provisions of the contract or of these GTC.

4.2.3the contractually agreed services can no longer be rendered by myDataCenter.at, or can no longer be rendered by economically reasonable means, for reasons for which myDataCenter.at is not responsible. When invoking this ground for termination, myDataCenter.at will inform the Customer appropriately.

4.2.4the Customer repeatedly or intentionally breaches statutory provisions, official requirements, provisions of the contract or of these GTC.

4.2.5the Customer makes incorrect statements upon conclusion of the contract or has concealed circumstances knowledge of which would have prevented myDataCenter.at from concluding the contract.

4.2.6the execution of the delivery or the commencement or continuation of the service becomes impossible for reasons for which the Customer is responsible, or is further delayed despite the setting of a reasonable grace period.

4.2.7doubts have arisen regarding the Customer’s ability to pay and the Customer, despite a request by myDataCenter.at, neither makes an advance payment nor provides adequate security prior to delivery or continuation of the service.

4.2.8the user repeatedly breaches the “netiquette” and the generally accepted standards of network use or tolerates misuse by third parties. This also includes unsolicited advertising and spamming (aggressive direct mailing), the use of the service to transmit threats, obscenities or harassment or to harm other participants.

4.2.9myDataCenter.at runs the risk that services can no longer be rendered, or can be rendered only in part, because of technical blocks which are attributable to misconduct of the Customer or which result from the use of the Customer’s facilities by third parties (e.g. blacklisting).

4.2.10the Customer exhibits a data transfer disproportionate to the data volume agreed with him or otherwise endangers the security and stability of the network. Upon the first occurrence, myDataCenter.at will immediately request the Customer to act in conformity with the contract and inform him of the existence of this extraordinary ground for termination. In the event of repetition, myDataCenter.at in any case reserves the right to proceed in accordance with section 4.3. If, however, there is imminent danger, myDataCenter.at will proceed immediately in accordance with section 4.4.

4.3myDataCenter.at may, at its own discretion, proceed not only by dissolving the contract but instead also by interrupting or restricting the services. The right of myDataCenter.at to extraordinary termination remains unaffected in any case.

4.4In the event of suspected breaches, myDatacenter.at is further entitled not only to a complete but also to a merely partial suspension. myDataCenter.at will inform the Customer of the measures taken and of the reason for them. A culpably caused discontinuation of the service does not release the Customer from his obligation to pay the monthly and annual fees.

4.5In the event of a premature dissolution of the contract that is not the fault of myDataCenter.at and that originates in the Customer’s sphere of influence, for whatever reason, myDataCenter.at is entitled, due as of the day of the dissolution of the contract and irrespective of the Customer’s fault, to prompt liquidated damages in the amount of the contractual fee accruing from the time of the withdrawal from the contract until the expiry of the originally agreed contract term. In the event of advance payment, myDataCenter.at is therefore entitled to retain service fees already received. Should the damage suffered by myDataCenter.at, however, be higher than the liquidated damages governed by this contractual provision, myDataCenter.at is in any case entitled to claim the damage actually suffered from the Customer.

5 Payment of Fees and Terms of Payment

5.1Compliance with the agreed payment dates is an essential condition for the performance of the services by myDataCenter.at. The fee is due within 14 days of receipt of the invoice and is to be paid in advance depending on the payment method chosen.

5.2Objections to the invoice must be raised by the Customer in writing and with reasons within 4 weeks of the invoice date. Otherwise the claim is deemed to be acknowledged. Objections do not affect the due date of the invoice amount.

5.3If the agreed fee is not received in the account stated in the invoice in due time by the agreed payment deadline, myDataCenter.at may block access to services and/or physical access to the data center, without prior notice, after expiry of a set grace period of 14 days and until receipt of payment. The blocking of an access has no effect on the payment obligation for service periods that have not been terminated.

5.4In the event of default in payment, myDataCenter.at is entitled to additionally charge all expenses and costs arising therefrom as well as default interest in the amount of 9 percentage points above the base interest rate. In addition, the Customer is obliged to reimburse the costs of collecting the outstanding claims.

5.5In the case of claims due, myDataCenter.at is entitled at any time to exercise its right of retention. This applies in particular to the hardware housed in the Customer’s rack.

5.6If work is performed outside normal working hours at the Customer’s request or on account of special circumstances that make this necessary, the additional costs will be invoiced separately.

5.7myDataCenter.at is entitled to increase the prices at any time upon written prior notice with a period of 6 weeks. The changed price applies if the Customer does not object to the changed price in writing within this period. The contractual relationship is then continued on the changed terms/prices. If the Customer objects in due time, both parties have the right to terminate the contract, with effect from the beginning of the above-mentioned period, with a notice period of one month to the end of the month. In the case of a change of fees, a right of termination of the Customer is excluded if the price is reduced.

5.8myDataCenter.at is entitled to adjust the agreed prices once a year on a value-secured basis in accordance with a) the Phelix Index or b) the EEX Austrian Power Future or c) the EEX German Power Future if the average of the daily value of the electricity prices over the last three months has increased by 5% relative to the time of the last adjustment or to the start of the contract. For the assessment, that index shall be used which has risen more strongly relative to the time of the last adjustment or to the start of the contract. Should one of these indices no longer be published, that index shall be applied which corresponds to it most closely. If the costs increase by more than 30%, the Customer is granted an extraordinary right of termination with a period of six weeks for the affected product.

5.9Unless otherwise agreed, myDataCenter.at has the right to increase the monthly service fee once a year, at the earliest twelve months after the date of entry into force, by the greater of the following values:

5.9.1by 3 percent or

5.9.2by the percentage increase on the basis of the Austrian consumer price index (VPI) or the index agreed as replacing it or

5.9.3by the percentage increase of the collective bargaining agreement for employees in companies in the field of services in automatic data processing and information technology.

5.10The non-exercise of the right to a value adjustment does not constitute a waiver of future adjustments. Adjustments of the fees pursuant to section 5.8 or 5.9 do not entitle the Customer to extraordinary termination.

5.11Any legal transaction fees pursuant to the Gebührengesetz (Austrian Fees Act) are owed by the Customer and are remitted by myDataCenter.at. This also applies if, in the course of an audit by the authority, it is subsequently established that parts of the contract are subject to fees or if fee calculations already made are changed in amount by the authority.

5.12The Customer accepts the volume limits agreed in the respective service descriptions or in the offer. If the limit is exceeded, a subsequent charge is made at the volume price per volume unit above the set limit agreed in the offers.

5.13Should a technical defect occur in an electricity consumption meter, the daily values of this meter measured since the last electricity reading will be extrapolated to the end of the month analogously to the consumption values of the previous month and the shortfall will be made up.

5.14All prices stated in offers or price lists are exclusive of statutory value added tax.

6 Liability, Warranty and Further Obligations of the Customer

6.1myDataCenter.at operates the services it offers with the highest possible degree of care, reliability and availability. However, beyond the general duty of care, myDataCenter.at gives no guarantee that these services will be accessible without interruption, that the desired connections can always be established, or that equipment deployed on myDataCenter.at premises and the data processed there will be preserved under all circumstances. Liability for consequential damages, lost profit and indirect damages is excluded.

6.2In particular, myDataCenter.at is not liable for losses, damages and consequential damages to data, or arising from data protection breaches and hardware, which are caused by unauthorized access by third parties.

6.3The Customer is familiar with the functional characteristics of the essential IT components and the risks associated with them. Furthermore, the Customer is responsible for assessing the required security and insurance needs and will carry out a corresponding risk analysis.

6.4myDataCenter.at is not liable for the content, completeness, accuracy, etc. of transmitted or retrieved data and for data that is accessible via myDataCenter.at. MyDataCenter.at reserves the right to block individual publicly accessible offerings where legal provisions, such as the TKG 2021 (Austrian Telecommunications Act), so require.

6.5myDataCenter.at is liable only for intentional or grossly negligent conduct of its employees. Liability for damages in the case of merely slight negligence is, by contrast, excluded. This exclusion of liability does not apply to personal injury or to claims under the PHG (Austrian Product Liability Act). The burden of proof for the existence of fault on the part of myDataCenter.at

6.6myDataCenter.at assumes no liability for damages arising from a required but not granted telecommunications authority permit or other official approvals, or from required but not granted approvals under private law or consents of third parties.

6.7In the event of liability, the Customer may set off only claims that are undisputed or have been finally determined by a court. The Customer is entitled to assert a right of retention only on the basis of undisputed counterclaims arising from this contract or counterclaims finally determined by a court. A quantified claim for damages is capped at a maximum of €20,000.00. The limitations of liability do not apply to personal injury resulting from harm to the life, physical integrity or health of a person where myDataCenter.at has caused such harm negligently.

6.8In the case of other services performed on hardware and software provided by the Customer, such as installations, functional extensions and the like, myDataCenter.at renders the agreed services to the extent that is possible under the technical conditions provided by the Customer. myDataCenter.at gives no guarantee that all functional requirements of the Customer can be met with the components provided and owes – unless expressly agreed – no updates or upgrades.

6.9Delivered goods remain the unrestricted property of myDataCenter.at until payment has been made in full

6.10The goods are deemed to have been handed over as soon as they have been installed in the Customer’s rack or dispatched to the Customer.

6.11Unless otherwise agreed, the warranty period for new goods is 6 months. During the warranty period, the Customer must prove that a defect was present at the time the goods were handed over and that it was not caused by use. For used goods, warranty is excluded.

6.12The Customer is obliged to inspect the goods immediately upon receipt and to give notice of any defects identified in writing without delay, but at the latest within 5 business days, stating the nature and extent of the defect in writing. Hidden defects must be notified in writing without delay, but at the latest within five business days of their discovery. myDataCenter.at will remedy defects, or have them remedied, within a reasonable period, whereby the Customer will enable all measures necessary for investigation and remedy of the defect. For warranty work carried out on the Customer’s premises, the Customer shall provide any necessary personnel free of charge. Parts replaced in the course of maintenance or repair become the property of myDataCenter.at. myDataCenter.at will provide remedy at its own discretion by eliminating the error, by installing a workaround, by supplying a new program version, or by pointing out ways to avoid the effects of the error.

6.13The Customer is liable for damage to and loss of devices and installations that myDataCenter.at sets up on the user’s premises in the course of rendering its services, irrespective of the cause and thus also in cases of force majeure, unless the damage was caused by myDataCenter.at or its agents.

6.14If the Customer withdraws from the contract for reasons for which myDataCenter.at is not responsible, damages payable to myDataCenter.at in the amount of the expenses demonstrably incurred by myDataCenter.at, but at least 20% of the net order value, are deemed to have been agreed.

6.15myDataCenter.at is not liable to the Customer for acts of other customers or third parties and assumes no responsibility whatsoever for damages that other customers or third parties inflict on the Customer in the course of the provision of services.

6.16In the case of firewalls, DDoS protection or other security solutions that are set up and/or reviewed by myDataCenter.at, myDataCenter.at proceeds in principle with the greatest possible care in line with the respective state of the art. The Customer is, however, advised that absolute security cannot be guaranteed. Here, too, myDataCenter.at is liable only for intentional conduct of its employees. Liability for damages in the case of merely slight negligence is excluded.

6.17Furthermore, myDataCenter.at is not liable for data retrieved from the internet by the Customer or for e-mails (including any viruses contained therein) from third parties, nor for services of third-party providers, and this applies even if the Customer obtains access to them via a link from the myDataCenter.at homepage or via information provided by myDataCenter.at. The Customer acknowledges that the use of the internet involves risks (e.g. viruses, Trojan horses, attacks by hackers, intrusions into WLAN systems, etc.). myDataCenter.at assumes no liability for damages arising from the above.

6.18The username agreed with the Customer, in combination with the password assigned by myDataCenter.at or by the Customer itself, enables access to the agreed range of services. Username and password are unique and identify the Customer unambiguously towards myDataCenter.at. The Customer is therefore obliged to keep its password secret. The Customer is liable for damages incurred by the Customer, myDataCenter.at or third parties that are attributable to inadequate secrecy or security of the password on the part of the Customer.

7 Software

7.1In the case of the delivery of software in connection with the ordering of licensed third-party software, the Customer confirms that it is aware of the scope of performance of such software. For third-party software products provided to the Customer, the respective license terms of the manufacturer of these software products take precedence over the provisions of this section.

7.2Insofar as software products are provided to the Customer or the Customer is enabled to use software products within the scope of the services, the Customer is entitled to the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form.

7.3Unless a separate agreement is concluded, no further rights in software products are transferred to the Customer. The Customer’s rights under §§ 40(d), 40(e) UrhG (Austrian Copyright Act) are not impaired hereby.

7.4No warranty of any kind whatsoever is assumed for software classified as “Public Domain”, “Open Source” or “Shareware”. The terms of use specified by the author for such software or any applicable license provisions apply.

8 Use and availability of services

8.1The Customer undertakes not to use the contractual services in any way that leads to the impairment of third parties or that endangers the security or the operation of myDataCenter.at or of others. Accordingly, prohibited are in particular spamming (aggressive direct mailing via email), DDoS attacks or any use of the service for the transmission of threats, obscenities or harassment, or for damaging other internet users.

8.2The use of network services contrary to these provisions, irrespective of whether such use consists in a use of the system operated by myDataCenter.at or of other systems on the internet contrary to its intended purpose, entitles myDataCenter.at to block access immediately and to charge for the expenditure incurred in localizing the damage, determining its extent and remedying it.

8.3myDataCenter.at reserves the right to disconnect customers physically and/or logically from the internet immediately and without prior warning where there is a justified suspicion that activities originate from their access points which endanger either the security or the operation of myDataCenter.at or of other systems. The costs of detecting and tracing the activities, of interrupting the connection and of any repairs are charged to the Customer at the hourly rates customarily charged by myDataCenter.at at the relevant time.

8.4When using the myDataCenter.at services, the Customer undertakes to comply with internet netiquette, meaning those standards of conduct to which internet users worldwide voluntarily submit (in particular the prohibition of harassing or frightening other users, the prohibition of mass emails, above all of commercial or pornographic content – “spamming”). A repeated violation entitles myDataCenter.at to restrict the affected offering or to terminate the contract, whereby the expenditure for processing the complaints is charged.

8.5Furthermore, the Customer undertakes to use suitable and sufficiently secure technical facilities and settings. If difficulties arise for myDataCenter.at or for third parties due to insecure technical facilities of the Customer (e.g. open mail relays), the Customer is obliged to indemnify and hold harmless. Furthermore, myDataCenter.at is entitled to block the Customer immediately or to take other suitable measures (e.g. blocking individual ports). myDataCenter.at will endeavor to apply the mildest means in each case. myDataCenter.at will inform the Customer without delay of the measure taken and of the reason for it.

8.6In order to maintain and ensure the security and availability of the services, myDataCenter.at carries out maintenance work, modifications or extensions to the infrastructure as required. myDataCenter.at endeavors to carry out this work outside ordinary business hours where possible, to keep the resulting service interruptions as short as possible and to inform customers of outages in advance. Should the urgency of the work to be carried out not permit this, myDataCenter.at reserves the right to carry out work even without prior information and notification of the Customer. myDataCenter.at will provide the information and notification to the Customer as quickly as possible thereafter. In any event, the respective customers are not entitled to any warranty claim and not entitled to any claim to a reduction of the fee for interruptions resulting from the work referred to in this section.

8.7The Customer is obliged to inform myDataCenter.at of any disruption or interruption of the services provided by myDataCenter.at in order to enable myDataCenter.at to remedy the problem. myDataCenter.at accepts the fault report, will begin remedying faults within office hours and will eliminate the fault within the scope of its technical and operational possibilities without culpable delay. The time required for remediation is determined by the criticality of the fault. The Customer shall support myDataCenter.at in localizing the place of the disruption and of the fault within the scope of its possibilities and at its own expense, and shall at all times grant myDataCenter.at or third parties commissioned by it the access necessary to enable the fault to be remedied.

8.8If myDataCenter.at or third parties commissioned by it are called in to remedy a fault and it is established that there is no fault in the provision of the contractually agreed services, but that the fault clearance was commissioned by the Customer without a legitimate reason for fault clearance on the basis of a culpable error attributable to the Customer, or that the Customer is responsible for the fault through its own fault, myDataCenter.at has the right to demand appropriate compensation from the Customer for the expenditure incurred.

8.9If, as a consequence of force majeure or official orders, deliveries or services cannot be rendered or can be rendered only in part, the obligation to perform is suspended or deferred for the duration of the event. In these cases, liability of myDataCenter.at is excluded insofar as there is no gross fault on the part of myDataCenter.at. Events of force majeure include, without limitation, events such as fire, flooding, earthquake, storm, lightning strike, epidemics, war, strikes or unrest of any other kind, sabotage, the failure to obtain official as well as private permits or authorizations, provided that this is not attributable to a breach of duty or an omission on the part of the contracting party applying for them; changes in the legal and regulatory situation or at the political level, damage caused by animals (rodents, etc.), as well as all those events that lie outside the direct business sphere of influence of the affected contracting party. myDataCenter.at endeavors to keep the effects of such events as low as possible insofar as this is technically and economically possible.

8.10Service quality and security measures

8.10.1myDataCenter.at ensures that the agreed service quality is guaranteed. The scope of the services offered and the main characteristics of each service provided, including any minimum levels of service quality and any restrictions, can be taken from the offer or from the service description.

8.10.2myDataCenter.at measures its network regularly in order to avoid congestion.

8.10.3In order to protect the integrity and security of the network and of the services provided and to be able to react to security incidents, threats or vulnerabilities, myDataCenter.at employs traffic management and security measures. In order to be able to detect and repel DDoS attacks, metadata of the packets is measured in automated form (e.g. source IP/port, destination IP/port, bytes). The transferred payload data is not analyzed. The measures taken by myDataCenter.at have no effect on the quality of the internet access, on privacy or on the protection of personal data.

8.11myDataCenter.at reserves the right to temporarily deactivate services of customers who become the victim of attacks by third parties if the services of other customers are adversely affected by the attack (e.g. DDoS attacks). myDataCenter.at will inform the Customer in an appropriate form about the temporary suspension of services. Any costs incurred as a result of the attack, e.g. work performed by myDataCenter.at technicians or costs of third parties that arise solely on that basis, are passed on to the Customer at the current list price. myDataCenter.at is not liable for costs and loss of earnings of the recipient of the service arising from the necessary blocking.

8.12myDataCenter.at is entitled to deactivate or revoke services and access to services temporarily or permanently if this is necessary on the basis of a legally effective decision of a court or arbitral tribunal enforceable in Austria or on the instruction of a competent authority. myDataCenter.at is not liable for costs and loss of earnings of the Customer arising from the necessary blocking.

8.13IP connectivity to other network operators is provided in accordance with the technical framework conditions. The use of other networks is subject to the usage restrictions of the respective operators (acceptable use policy). The constant availability of these transmission paths and of the myDataCenter.at services dependent on them can therefore not be guaranteed.

9 Customer Service

9.1With regard to any inquiries in connection with the products, services and deliveries as well as invoices or other technical matters, customers can reach myDataCenter.at either by telephone during business hours or online using the following contact details: Telephone number: +43 2732 / 71545-0 E-mail: Inquiries to customer service may also be addressed by e-mail to support@myDataCenter.at. Business hours for all inquiries: Monday to Friday, in each case from 08:00 to 12:00 and 13:00 to 16:45

10 Amendments to the General Terms and Conditions

10.1Amendments to the GTC, to any special conditions or to the service descriptions may be made unilaterally by myDataCenter.at and are also effective for existing contractual relationships. The current version is available on the myDataCenter.at website (or will be sent to the Customer upon request). The amendments become effective if the Customer does not object in writing within 4 weeks of receipt of the notice of amendment. In the event of an objection by the Customer, myDataCenter.at is entitled to terminate the contract with the Customer as of the last day of the current month. If myDataCenter.at does not terminate the contract with the Customer, the previous GTC shall continue to apply to that Customer.

10.2If customers are exclusively favored by the amendments, these amendments may be applied by myDataCenter.at on the day on which the amendments are announced. This also applies to fee changes on the basis of an agreed index adjustment.

11 Special Provisions for Communications Services

11.1Identity verification: The Customer agrees that myDataCenter.at verifies the Customer’s identity and stores certain master data prior to the provision of the service in accordance with the mandatory provisions of the TKG 2021 (Austrian Telecommunications Act) (§ 132 para 2 no 13 and § 166 para 2). The Customer must state (i) the full company name, (ii) the legal form, (iii) the address (iv) the name and position of the legal representative as well as a copy of the corresponding documents evidencing this (e.g. an excerpt from the commercial register). Legal representatives and natural persons must present proof of identity, and myDataCenter.at will verify the information provided by means of recognized and established methods of identity verification.

11.2Amendments to the GTC including price changes: Amendments to these GTC, to any special conditions or to the service descriptions and fee provisions (price lists) of the services may be made unilaterally by myDataCenter.at and are also effective for existing contractual relationships. The respectively current version of the applicable service descriptions and price lists is available on the myDataCenter.at website (or will be sent to the Customer upon request).

11.3If customers are exclusively favored by the amendments, these amendments may be applied by myDataCenter.at on the day on which the amendments are announced. This also applies to exclusively favorable price reductions or fee changes on the basis of an agreed index adjustment.

11.4If customers are not exclusively favored by the amendments, a PDF will be transmitted to the Customer by e-mail no later than three months before the new provisions take effect, notifying the Customer of (i) the content of the amendments, (ii) the date of entry into force as well as (iii) the Customer’s right to terminate the contractual relationship affected by the amendments with myDataCenter.at extraordinarily and free of charge up to the entry into force of the amendments. The amendments become effective at the point in time stated in the notification, however at the earliest after a three-month period from notification of the amendment. In the event of a justified termination by the Customer, the respective affected contract ends upon receipt of the declaration of termination by myDataCenter.at, whereby the previous contractual provisions and fees apply until then. If the Customer does not terminate, the contractual amendments become effective at the announced point in time. Fee changes pursuant to clause 5.8 or 5.9 do not entitle the Customer to extraordinary termination.

11.5Invoicing: Invoices will comply with the statutory requirements pursuant to § 138 TKG 2021 and will be transmitted in PDF format to the e-mail address provided by the Customer and made accessible to the Customer for up to seven years. The Customer is entitled to request the receipt of an invoice or of an itemized bill in paper form free of charge.

11.6Invoice disputes: Objections to the claims asserted in the invoice may be raised by the Customer within 3 months of the invoice date and are to be addressed by e-mail to office@myDataCenter.at; otherwise the claim is deemed to be acknowledged. Objections do not preclude the invoice amount from falling due. Should myDataCenter.at contradict the Customer’s objections after thorough examination, the Customer has the right to apply for dispute resolution before the Austrian Broadcasting and Telecommunications Regulatory Authority (“RTR”). The Customer may bring such dispute resolution in due time only within one (1) year from the point in time at which the Customer raised the objections in writing towards myDataCenter.at. The Customer may also seek legal protection before the ordinary courts.

11.7Alternative dispute resolution, conciliation: Without prejudice to the jurisdiction of the ordinary courts, the Customer is entitled to submit disputes and complaints that cannot be settled satisfactorily with myDataCenter.at to the conciliation body of the RTR (www.rtr.at) within the statutory period (currently one (1) year in accordance with the applicable procedural rules). The proceedings before the regulatory authority are conducted in accordance with the RTR conciliation guidelines available on the aforementioned website and with the Alternative-Streitbeilegung-Gesetz – AStG (Austrian Alternative Dispute Resolution Act), BGBl I No 105/2015, as amended.

11.8Compensation and reimbursement provision: If myDataCenter.at, contrary to its contractual obligations, does not provide the service to the Customer, myDataCenter.at undertakes, in the case of reasons for which myDataCenter.at is responsible, to grant the Customer a credit note in the amount of €13.00 (excl. VAT) per week of non-provision. The credit note is granted from the third week of non-provision onwards. The weekly period begins to run upon the fault report by the Customer. The compensation provision does not apply if the non-provision is attributable to delays caused by third parties who are not vicarious agents of myDataCenter.at.

11.9Services for users with disabilities: myDataCenter.at currently does not offer any services specifically for users with disabilities, but provides, as far as possible, measures that enable people with disabilities to make use of the services on an equivalent basis. Thus, all documents are made available in writing or, if required, also discussed in individual consultation meetings.

12 Miscellaneous Provisions

12.1The Customer must notify changes of its address in writing without delay. Documents are deemed to have been received by the Customer if they were sent to the address last notified by the Customer. Electronic declarations are deemed to have been received if they were sent to the e-mail address last notified by the Customer.

12.2myDataCenter.at is authorized to transfer its obligations in whole or in part, and thus also with regard to individual services, or the entire contract to a third party with the effect of being released from its own obligations. The right to use vicarious agents remains unaffected.

13 Severability Clause

13.1Should one or more provisions of this contract be or become legally invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The invalid provisions shall be replaced retroactively by a provision that is as far as possible identical in content and comes closest to the purpose of the intended provision.

14 Place of Jurisdiction

14.1Unless otherwise agreed, the statutory provisions applicable between entrepreneurs apply exclusively in accordance with Austrian law, even if the order is carried out abroad. For any disputes, the local jurisdiction of the court having subject-matter jurisdiction for the place of business of the Contractor is deemed to be exclusively agreed.

Download GTC as PDFPDF, 388 KB · as of October 2023