A. General part
1. scope, changes
a) These General Terms and Conditions in connection with the current price lists are the basis for all contractual relationships between customers and OMOC.interactive. Any deviating terms and conditions of the customer shall only become an integral part of the contract to the extent that they are expressly agreed to.
b) OMOC.interactive reserves the right to supplement or amend these General Terms and Conditions - also with effect for current contracts - after a reasonable period of notice. Such amendments or changes shall take effect if the customer does not object to them within a period of six weeks after receipt of the relevant notification, which informs about the relevant amendments or changes and clarifies the possibility of objection and the period for objection.
2. conclusion of contract, changes, written form
a) Offers from OMOC.interactive are always subject to change.
b) Counter-signature of the order confirmation by the customer is required to conclude the contract. Changes or extensions of the order content are to be agreed in the same form. The contractual scope of services is exclusively based on the content of the respective order confirmation in connection with the associated service description on our homepage.
3. fulfilment of contract by third parties, delays in performance
a) OMOC.interactive is entitled to commission third parties to fulfil its contractual obligations.
b) OMOC.interactive always strives for fastest possible order fulfillment.
If no deadline has been contractually agreed, OMOC.interactive shall not be liable for losses incurred by the customer due to possible delays in the fulfilment of the order. Even with bindingly agreed periods OMOC.interactive is not liable for damages due to a delay in the provision of services due to force majeure, delay on the part of third parties and due to events which significantly complicate or make the provision of services impossible.In such cases,
OMOC.interactive is entitled to extend the performance period by the duration of the impediment, plus an appropriate start-up period. If delays of more than three months occur, the customer is entitled to withdraw from the contract with regard to the part of the agreed service still to be performed and excluding the assertion of claims for damages.
4. cooperation obligations of the client
a) The customer supports OMOC.interactive in contract fulfillment. This concerns in particular the transmission of the necessary information, the availability of suitable hardware and software as well as a sufficient number of personnel. Necessary interventions in the customer's EDP will be announced in good time. In such cases, the customer carries out a data backup.
b) If the order conditions the use on site (at the customer himself or at another place of performance determined by the customer), the customer must ensure that OMOC.interactive and its employees and vicarious agents are freely accessible premises and technical facilities within the agreed period.
5. property rights of third parties
If the customer provides software, scripts, licenses, images or other files and material which he or OMOC.interactive is to use when the contract is fulfilled, he or she shall ensure that the necessary licenses for use by OMOC.interactive, e.g. on the website, are also available. In this respect, the customer shall indemnify OMOC.interactive against claims of third parties in the event of his own negligence.
Unless expressly contractually agreed, the assignment of contractual rights and obligations on the part of the customer requires the prior consent of OMOC.interactive.
7th remuneration and terms of payment
a) Unless otherwise stated in the respective order confirmation, our current price lists apply. The amounts there are exclusive of the legally applicable value-added tax.
b) Invoice amounts are due for payment within seven days from the invoice date (receipt of the invoice amount by OMOC.interactive).Cheques and bills of exchange shall only be accepted on account of performance. We assume no liability for the timely submission. Discount and collection charges shall be borne by the customer.
c) The customer must check invoices immediately and as far as possible. Objections regarding the invoice amounts are to be asserted within 21 calendar days in writing, by fax or e-mail to OMOC.interactive. Late objections shall be deemed approval. The customer receives a separate written reference in the invoices to the consequences of late objections.
d) OMOC.interactive reserves the right to offer certain services only by direct debit.
8. offsetting, assignment, right of retention
a) The customer can only offset against OMOC.interactive with legally established or undisputed claims.
b) OMOC.interactive reserves the right to assign payment claims to which it is entitled against the customer.
c) The customer can only assert rights of retention with regard to his counterclaims from the relevant contract.
9th late payment
a) The customer is in default of payment if he does not make payment at an agreed time. Irrespective of a separately agreed payment term, the customer shall be in default in the event of non-payment even without a reminder after 21 calendar days from the date of performance and receipt of invoice.
b) If the customer is in default of payment, OMOC.interactive is entitled to refuse and discontinue all services to and also from other contracts. OMOC.interactive assumes no liability for possible damages in this respect.
c) OMOC.interactive reserves the right to demand securities or advance payments (e.g. direct debit) in case of justified doubts about the customer's ability to pay or willingness to pay as well as in case of default of payment.
d) In the event of default OMOC.interactive charges the customer, subject to further damages, default interest in accordance with § 247 BGB in conjunction with the currently applicable base interest rate of the European Central Bank.
10th limitation of liability
Without prejudice to liability under the Product Liability Act, OMOC.interactive and its employees and other vicarious agents shall be liable under the following conditions:
a) OMOC.interactive is liable without limitation for fraudulent intent as well as for damages to body, health and life and for other damages caused intentionally or through gross negligence by OMOC.interactive, its employees and other vicarious agents.
b) Liability for simple and slight negligence is limited to breaches of obligations on the fulfilment of which the customer was entitled to rely and compliance with which is indispensable for the proper execution of the contract and which concern such damages which are typically to be expected in the concrete fulfilment of the contract. Furthermore, liability for damage caused by simple negligence or slight negligence is excluded.
11th data storage
Customer data is stored exclusively in compliance with statutory regulations.
12th choice of law, place of performance, place of jurisdiction
a) The laws of the Federal Republic of Germany shall apply exclusively to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
b) Place of performance is Welver.
c) The place of jurisdiction for all disputes arising from and in connection with contracts is Welver, provided that the customer is a merchant, a legal entity under public law or a public special fund.
B. Special conditions for work services
In addition to the terms and conditions of the General Section, the following special terms and conditions shall apply additionally and only to contracts for work services (e.g. programming orders for the creation of individual software).
a) The customer must declare acceptance to OMOC.interactive immediately after handover of the work performance. For this purpose, the customer carries out a functional test. If the work performance corresponds to the content of the order, the customer must declare acceptance immediately and in writing.
b) If the acceptance declaration is not made within a reasonable period, OMOC.interactive can set the customer a deadline of two weeks to make the declaration. After expiry of this period, the work shall be deemed accepted unless the customer has previously declared acceptance, has set a deadline for the completion of his inspection or the customer does not give any reasons for an extension of the inspection. OMOC.interactive will inform the customer about the consequences of the above alternatives by setting a deadline.
2. claims for defects
a) Warranty claims expire one year after the date of acceptance. This does not apply to defects maliciously concealed by us.
b) The customer must immediately report obvious defects in writing, by e-mail or by fax OMOC.interactive. If the customer fails to report obvious defects without delay, his claims with regard to these defects shall lapse.
c) If a defect occurs, OMOC.interactive has the choice, by way of subsequent performance, either to remedy this defect within a reasonable period or to recreate the work complained of.
d) If the defect is not remedied despite attempts to remedy it, if subsequent performance is unreasonably delayed or refused without justification, the customer has the choice between withdrawal from the contract or reduction of the compensation for work.
e) If the customer or third parties cause errors due to incorrect operation or damage or alteration of the delivered work, claims for defects are excluded. If the customer or a third party has changed the work produced, claims for defects shall only exist if the customer OMOC.interactive proves that the change made did not significantly increase the removal effort and that the defect complained of already existed at the time of acceptance.
C. Special conditions server hosting and rental systems
In addition to the terms and conditions of the General Section, the following special terms and conditions shall apply additionally and only to server hosting services and to contracts in the area of rental systems.
1. subject matter and technical requirements
a) OMOC.interactive provides storage space on server systems with Internet connection and related services. OMOC.interactive offers the use of prefabricated software products (rental systems) that can be adapted by the customer to his own requirements on the in-house server with Internet connection.The content and scope of the respective services, the technical characteristics of the server system and the Internet connection result from the respective order confirmation in connection with the service description on the offer pages of the OMOC.interactive homepage.
b) The customer has no claim to the selection of certain components (hardware and software, operating systems, etc.) that OMOC.interactive uses for the provision of services.
c) The specified storage capacities of the server systems refer to the total storage space available to the customer, including possible log file storage and backup storage space.
d) The customer does not acquire the right to access the rooms where the servers are located. The customer is not entitled to any rights in the server system.
e) OMOC.interactive attaches great importance to highest reliability of the operated servers. We are therefore anxious to exclude interruptions of the server operation. OMOC.interactive guarantees 98% availability of your servers. Should there be more than 2% downtime within a calendar month, the customer will receive a pro rata credit of the agreed remuneration for that month.
Further claims for damages of the customer due to failures or malfunctions of the server are only entitled to OMOC.interactive if we have acted with intent or gross negligence in this regard.
f) Response times in the event of server failure or malfunction are usually 30 minutes to two hours during office hours on weekdays, except Saturdays, and between three and six hours for other times.
g) OMOC.interactive is entitled to change or adapt the rental system software at any time, provided this does not significantly impair the functionality.
OMOC.interactive also performs updates and upgrades at certain intervals. The customer has no legal claim in this respect. Updates and upgrades are offered by us, provided that this concerns either possibly occurring and on our servers comprehensible errors or provided that technical innovations (e.g. new functions) are added to the product. All customers will then receive the update or upgrade free of charge.We reserve the right to block the customer login during the update/upgrade process.If there is no urgency, updates and upgrades of the rental systems are only carried out at night and on weekends. In this regard, we may announce more extensive work beforehand via the OMOC.interactive newsletter.
2. special responsibility and duties of the customer
a) To ensure a fast and cost-effective recovery of customer data after a possible system failure, the customer must make decentralized backup copies of the data on the servers daily.
b) The use of the OMOC.interactive server and the software on it is at the customer's own risk, OMOC.interactive assumes no liability for damages incurred by the customer through the provision or transmission of his data on the Internet. OMOC.interactive assumes no liability for direct and indirect damages due to technical problems, server failure, data loss, transmission errors, data insecurity or other reasons, unless OMOC.interactive can be proven intentionally or negligently. The limitation of liability according to Section A. General Section 10 remains unaffected.In the case of a desired recovery of data, as far as possible, the customer bears the costs incurred in each case (at present 65 euros plus the statutory VAT per recovery).
c) OMOC.interactive does not control the customer's information content. The customer is responsible for ensuring that the domains registered on the server, the contents and data there as well as the search engine keywords used do not violate legal prohibitions, morality or the rights of third parties. In particular, the customer is prohibited from sending or forwarding mass e-mails to promote domains or websites, sending or forwarding potentially unwanted advertising e-mails, unauthorized intrusion into third-party computer systems, searching for open access to computer systems and sending viruses and Trojans.
The customer undertakes to assume all liability claims and damages asserted by third parties against OMOC.interactive or the network operator to which the server is connected due to the provision of the customer's files or the use of the server or the software by the customer.
d) Downloads of files with a size of more than 50 MB may only be offered on the customer's pages after our approval. The server must not be overloaded by files and CGI scripts of the customer.
e) The maximum retention period for e-mails not retrieved by the customer or stored e-mail copies on the server is three months. After three months these contents will be deleted.
f) The customer is obliged to keep his passwords secret and to renew them at regular intervals. He is liable for damages caused by inadequate passwords, inadequate secrecy or the passing on of passwords to third parties.
3. blocking of storage space, payment obligation, replacement of additional expenditure
a) In the event of a violation of the customer's obligations mentioned in Clause 2. lit. c), OMOC.interactive is entitled to immediately block the storage space, in particular if we are claimed for injunctive relief or damages by third parties in this regard or if we are requested to do so by law enforcement authorities or courts. The choice and duration of suitable measures in individual cases shall be at our discretion, taking into account the justified interests of the customer. The customer will receive immediate notification from us regarding the action taken, possibly combined with information, to be able to access the respective content in order to rectify the violations.
As far as third parties claim omission against OMOC.interactive because of the customer's files, we are entitled to block access to the files until the customer has averted this claim beyond any doubt.
b) Insofar as OMOC.interactive is entitled to take measures as defined in a) above, this does not release the customer from his obligation to pay the agreed remuneration. In addition, the customer must OMOC.interactive reimburse the workload associated with the measure taken and its cancellation at the hourly rates applicable at the time. The measure will only be unblocked or revoked after full reimbursement of expenses.
4th contract term, termination
a) After expiry of the contractual minimum term (see offer conditions), the contractual relationship shall continue for an indefinite period, unless otherwise stipulated in the contract or not terminated within three weeks before expiry of the contractual minimum term. Notice of termination must be in writing and may be given by either party.
b) The right to terminate for good cause remains unaffected.