General Terms and Conditions
(Version dated 10/2015)
1. Scope of Validity
1.1. These General Terms and Conditions (“GTCs”) apply for all offers and agreements in which Onlim GmbH (“Onlim”) acts as a provider or supplier of products and/or services (“services”) vis-à-vis another party (“customer”). The version valid at the time of the conclusion of the contract is decisive.
1.2. Onlim performs its services exclusively vis-à-vis entrepreneurs. With the submission of its contractual declaration the customer expressly confirms that it is an entrepreneur within the meaning of § 1 (1) (1) of the Consumer Protection Act (KSchG) and that the transaction is part of the operation of its enterprise.
1.3. The basis of the contract between Onlim and the customer encompasses (i) the offer of the customer that it submits online with regard to the selected product plan including acceptance of the offer by Onlim (“order confirmation”); (ii) the performance specifications of the respective product(s) (“performance specifications”); (iii) these GTCs including the Service Level Agreement (”SLA”) and (iv) any other written agreements that are agreed individually as contractual content (also “contract” or “basis of the contract” in the following). In the event of contradictions or deviations, the above-mentioned integral parts of the contract shall apply in the order listed above.
1.4. Price lists are valid subject to changes in prices, errors and printing errors.
1.5. The basis of the contract is accepted with the offer of the customer (shipment online order form). The customer is bound by such for four weeks as of Onlim’s receipt of the offer. The contract is deemed as concluded with Onlim’s acceptance of the offer of the customer by email (order confirmation). These GTCs apply for this contract as well as all future contracts, even if they are not expressly agreed again. The basis of the contract also applies to any changes to the contract made after its conclusion.
1.6. General Terms and Conditions of the customer that conflict with these GTCs or deviate from these or dispositive law shall not become an integral part of the contract unless expressly agreed by Onlim in writing on a case-to-case basis.
1.7. Onlim is entitled to change these GTCs at any time. The customer here and now accepts such changes. Onlim will notify the customer of any changes made to the GTCs (“notification”). Furthermore, the latest GTCs are available on the website of Onlim at http://onlim.com/en/terms-and-conditions/. The changed GTCs become valid for all current and future business relationships on expiry of a period of 2 months as of the sending of the notification to the customer. Should the customer not agree to the changes, it is entitled to terminate this contract within a period of notice of 30 days as of the day it receives the notification of the changed GTCs. Should the customer give such notice, the contract ends with expiry of the month in which Onlim receives the notice of termination.
2. Contract duration
2.1. The two-week test phase begins with Onlim’s acceptance of the offer by email (order confirmation). The customer is entitled to withdraw from the contract at any time without giving reasons until expiry of this test phase. No remuneration is charged during the test phase.
2.2. The contractual relationship in return for payment and the customer’s obligation to effect payment in compliance with Point 5. commences on expiry of the test phase (“commencement of the contract”). From this time onwards withdrawal from the contract and reimbursement of any payment made is not possible before the end of the respective contract (Points 2.3 and 2.4).
2.3. On submission of its contractual declaration via the online order form the customer selects the product plan and also a contract period of either one month or one year. Unless expressly agreed otherwise, the contract is concluded for the period of one month or one year from the commencement of the contract in compliance with this selection.
2.4. The contract is extended for another month or another year depending on the selected product plan, provided neither of the contractual parties gives notice of termination of the contract to the other contractual party.
3. Provision of services by Onlim
3.1. Onlim provides customers with software for connection to social media channels. Contents from third-party providers, such as tourism associations, content portals or blogs (providers), are suggested to customers; these contents are stored by Onlim and transmitted to the customers. The provider bears sole responsibility for the contents. The function of Onlim is limited to a technical interface (see here Point 7). The customer can select the suggested contents and adopt these in its own social media channels (e.g. Facebook or Twitter profile) via an interface setup by Onlim.
3.2. The scope of the services to be provided by Onlim, in particular the scope of the providers of contents and the social media channels connected via the Onlim software, depend on the offer of the customer (online order form) plus Onlim’s acceptance by email (order confirmation) and the performance specifications. Any subsequent changes to the scope of the services require the written form.
3.3. Onlim is entitled at its own discretion to perform the services it has accepted itself or to use the services of third parties (“subcontractors”) for the performance.
4. Provision of software – SaaS model
4.1. Onlim makes the respectively latest version of the software available for the customer via the Internet in return for payment for the duration of this contract (“Software as a Service” – SaaS model). To this end Onlim stores the software on a server, which can be accessed by the customer via the Internet.
4.2. Onlim continuously develops the software further and improves it by means of continuous updates and upgrades. The respective latest scope of functions of the software is determined by the performance specifications on the website of Onlim at: www.onlim.com.
4.3. Onlim continuously monitors the functionality of the software and rectifies faults in accordance with the Service Level Agreement (SLA, Annex./1), which is an integral part of these GTCs.
4.4. Onlim grants the customer the non-exclusive and non-transferable right of use to the software indicated in this contract for its intended purpose within the scope of the SaaS services for the contract duration.
4.5. The customer may copy and process the software only to the extent this is permitted by the intended use of the software laid down in the respectively latest performance specifications. Necessary reproduction includes loading the software into the main memory.
4.6. The customer is not entitled to make the software available for use to any third parties, neither against payment nor free of charge. The customer is expressly forbidden from subleasing the software.
4.7. The customer undertakes to arrange any contractual relationships it has with third parties in such a way that they exclude the possibility of the software being used free of charge.
4.8. Unless §§ 40d, 40e of the Copyright Act (UrhG) mandatorily provide for a more extensive regulation, no further rights are granted for the software. Onlim retains all exclusive rights to the software used and all other intellectual property rights.
4.9. The customer acquires a right of use and a right to process the contents it accesses only to the extent that the provider of the respective content grants a right of use and the right to process. In case of doubt, the customer has only a non-exclusive, non-transferable and at any time revocable authorisation of use allowing it to make the contents of its own social media channels available to the public pursuant to § 18a UrhG.
5.1. Onlim is entitled to the agreed remuneration for its services, otherwise a reasonable remuneration.
5.2. Onlim is entitled to increase the remuneration annually in proportion to the increase in the consumer price index 2010 published by Statistics Austria. The index number published for the month of the conclusion of the contract is used as the base for the increase. As soon as a comparison is possible after the index figure is published and the increase in the remuneration is therefore determined, the increased remuneration falls due for payment with the due payment date of the next invoice. In the event the Consumer Price Index is no longer conducted by Statistics Austria, then alternatively published index shall be used to calculate the value stability.
5.3. Any other changes to the remuneration and changes in the scope of the services over and above those laid down in Point 5.2 are only possible if agreed by the customer. Such changes will come into force two months after notification has been given to the customer concerning the change Onlim wishes to make, unless Onlim receives a written objection from the customer within that period. In the notification Onlim will draw the customer’s attention to the respectively desired change and to the fact the customer’s keeping silence will be deemed as acceptance on expiry of the time limit. The customer is entitled to terminate the contract free of charge until such time as the change comes into force.
5.4. Unless indicated to the contrary, the fee is stated plus VAT.
5.5. The customer is not entitled to offset its own claims against any claims of Onlim unless such claims have been legally established by a court of law or have been expressly accepted by Onlim. A right of retention on the part of the customer is excluded.
6.1. In the absence of any agreement to the contrary, remuneration falls due for payment with the issue of the invoice by means of credit card or any other means of payment accepted by Onlim. The different means of payment accepted by Onlim can be found on the website www.onlim.com.
6.2. Invoices must be paid in full without any deductions and free of charge.
6.3. The customer is liable for any reminder fees and costs (also out-of-court costs) for the intervention of lawyers necessary for the purpose of prosecution.
7. Exclusion of liability for contents
7.1. The function of Onlim is limited to the setting up of a technical interface between the contents of the providers and the social media channels of the customer. The contents are made available exclusively by the provider, who also bears exclusive responsibility for the contents. Onlim is not obliged to generally monitor the contents made available by providers or customers nor to search of its own accord for circumstances that suggest an illegal activity. In particular Onlim is not obliged to examine the contents in order to ascertain whether they infringe on existing or foreign laws, existing contracts or rights of third parties, especially any intellectual property rights of third parties. Onlim declines all responsibility in this respect.
7.2. Onlim is not liable for the correctness or completeness of transmitted data. No liability is assumed for loss of data.
7.3. Onlim is entitled to remove information or block access to it at any time.
7.4. On no account is the customer entitled to have specific contents or channels made available.
7.5. The customer is obliged to examine the data and information for any existing copyrights, trademark rights, rights of use and personal rights or any other rights of third parties, regardless of whether such data and information come directly from the customer or from a provider. Onlim is not liable for any infringement of such rights. The customer shall, on first request, entirely indemnify and hold Onlim harmless in the event claims are brought against Onlim by any third party, but in particular also by a provider, due to such an infringement of rights. The customer is obliged to reimburse Onlim for all inconveniences, including costs for legal representation, arising from claims brought against it by third parties.
7.6. The customer bears sole responsibility for any editing of the contents provided that extend over and above the scope of what is contractually permissible. Onlim is not obliged to examine any content customers post online for any impermissible editing.
7.7. The customer is not entitled to use the services of Onlim in any illegal or improper manner. In particular the customer is not entitled to interfere with the services or to access the services in any other way than via the user interface provided by Onlim and in accordance with its stipulations. The customer may only use the services of Onlim to the extent permissible by law.
7.8. Onlim is entitled to suspend or discontinue the provision of the services for the customer if the customer breaches its contractual or legal obligations or if Onlim is in the process of examining any suspected misconduct.
7.9. Onlim will make every effort to effect the connection of the software to the social media channel for which the customer has an account in compliance with the respective rules of use of the respective social media provider. However, as Onlim has no influence over these conditions of use, it cannot assume any liability vis-à-vis the customer for observation of the conditions of use of the respective provider.
8. General disclaimer
8.1. The liability of Onlim for slight negligence – with the exception of personal injuries – is excluded.
8.2. The liability of Onlim for gross negligence – with the exception of personal injuries – is also excluded.
8.3. The customer bears the burden of proof in the case of gross negligence or wilful intent.
8.4. Onlim is not liable for (i) any loss of profits, (ii) any purely financial losses, (iii) any consequential damage, with the exception of personal injury or wilful intent.
8.5. Onlim’s obligation to pay compensation is limited per case of damage to maxim the amount of an annual fee. This limitation shall apply to every event that caused damage vis-à-vis all damaged parties. The assertion of claims for more extensive damages is not permitted.
8.6. All claims for compensation against Onlim shall be barred by limitation within six months from the time knowledge has been gained of the damage and the liable party.
8.7. Claims for compensation shall be barred by limitation at the latest three years after the occurrence of the event that caused damage.
8.8. The customer is aware that the services provided by Onlim concern electronic processes, and that errors can occur despite all safety measures. In particular errors can occur with regard to availability and accessibility of the Onlim systems. Any liability on the part of Onlim for such errors is excluded, in particular errors in the Internet and the connection from the customer to Onlim, to providers or to the respective social medial channel. Onlim is not liable for the services of providers, network problems or breakdowns of customer or provider systems, or for compatibility of the software used by the customer with any services to be provided by Onlim or a provider. It is not possible for Onlim to examine extensively the systems used by the customer and check these for compatibility. Onlim has no obligation to give warning in this respect. The customer bears the responsibility in the event of any incompatibility.
8.9. Onlim is not liable for any case of non-fulfilment or a complete or partial delay in the performance of its obligations for Onlim is not responsible. In such a case the customer has no right to claim compensation and Onlim is entitled to full payment of the agreed fee without reduction.
9.1. Onlim gives no warranty and is not liable for a specific property or specific intended purpose of the services.
9.2. The customer must always prove that the defect existed at the time of transfer.
9.3. The warranty period is 6 months.
10. Termination for good cause
10.1. The contract can be terminated prematurely by each contractual party without notice at any time for good cause. In particular the following instances are deemed good cause that entitle Onlim to terminate the contract prematurely:
a) the customer is in default of payments agreed in the contract despite these being due;
b) the financial situation of the customer deteriorates substantially, insolvency proceedings are opened over the assets of the customer or the opening of insolvency proceedings is rejected due to lack of assets to cover the costs involved or an official receiver is appointed;
c) a significant change in or termination of a contract with one or more providers, for whatever reason;
d) any other sustained non-fulfilment of contractual and legal obligations on the part of the customer.
10.2. In the event of termination of the contract for good cause, the customer is obliged to pay the fee for the remaining duration of the contract in full without any deductions. Furthermore, if culpable, the customer is liable for any further damages incurred by Onlim.
11.1. The customer expressly gives its consent to Onlim automatically collecting, storing and processing the data that has been provided (in particular name, address, email, credit card data, data for bank transfers, telephone number) for the purposes of fulfilling the contract and support and for its own promotional purposes.
11.2. Data is not transmitted to any third party without the express agreement of the customer, insofar this is not necessary for the provision of the service or the performance of the contract (e.g. passing on of data to subcontractors).
11.3. In particular, the customer gives its consent to Onlim using the customer data to access the social media channels, with which the customer has an account, in the name and via the account of the customer and to make public the contents selected by the customer via the customer account.
11.4. Onlim is entitled to store and process the data of the customer during the existence of the contractual relationship and for a reasonable period after this, in order to ensure the rights of Onlim vis-à-vis the customer even after termination of the contract.
11.5. Onlim is entitled to make contact – also for information and promotional purposes – by fax, email, telephone and text message in compliance with § 107 of the Telecommunications Act (TKG). This approval can be revoked at any time where promotional purposes are concerned.
12. Final provisions
12.1. The exclusive jurisdiction of the court competent for commercial matters for Vienna, Inner City, is agreed for all disputes arising from this contract, as well as its existence and termination.
12.2. The right to contest or adjust this contract due to error, the amendment or the ceasing to exist of the basis of the contract, reduction of value to less than one half (laesio enormis) or any other reasons is excluded.
12.3. Declarations from Onlim sent to the last known address are deemed to be received.
12.4. The contract is subject exclusively to Austrian law to the exclusion of the conflict of law rules of International Private Law and the CISG.
12.5. Should a provision in this contract be invalid or contestable or ineffective for any other reason, this shall in no way affect the validity or legal effectiveness of the remaining provisions of the contract. Where content and meaning are concerned the provisions that cannot be applied must be replaced by the legally valid provisions of this contract that come as close as possible to the intention of the parties to the contract. This also applies to any gaps in the contract.
12.6. Changes and/or supplement to this contract require the written form to be legally effective. The same applies to the waiving of this written form requirement. There are no verbal subsidiary agreements.
12.7. Rights arising from this contract may only be transferred to third parties with the express approval of Onlim.
12.8. This contract is also binding for all legal successors of the parties to the contract. The parties to the contract undertake to impose this contract on their respective legal successors. Onlim is entitled, at its own discretion, to impose the contract on a third party. The customer here and now gives its approval in this respect and waives any rights of objection.
12.9. The place of performance for all services under this contract are the registered offices of Onlim.
12.10. The language of the contract is German. In case of divergences between the German and the English version of these GTC the German version shall prevail.
ONLIM Service Level Agreement (SLA)
Version dated 10/2015
This document describes the Onlim Service Level Agreement (SLA) for the performance of all services of the Onlim product line.
The scope of services and the necessary conditions and requirements to be fulfilled by the customer are described in the following.
1.1. Scope of the services
Including the services of this SLA:
• personal email support
• remote assistance available via remote desktop and virtual private network (additional costs)
1.2. Customer requirements
The responsibilities of the customer and/or requirements for the support of this agreement include:
• Payment of all product costs within the agreed period as stipulated in the GTCs
• adequate availability of the customer or a representative for solving an event or query connected with the service
1.3. Service provider requirements
The responsibilities of onlim include:
• appropriate response times in the case of a service incident
• adequate notification of the customer of all planned maintenance work
2. Service Management
Total accumulated downtimes of Onlim products and services will not exceed a period of 72 hours a year.
Support services for Onlim products and services apply as follows:
• email support : 9:00 a.m. – 5:00 p.m. Monday – Friday CET (except Austrian public holidays)
Emails received outside of office hours are collected, but processing can only be guaranteed for the following workday.