Terms and Conditions
of data.mill GmbH, Georg-von-Trapp-Straße 12, 5026 Salzburg-Aigen, Austria.
1.1. Contract basis. data.mill GmbH forms its contracts and provides its services exclusively on the basis of its written offers, as well as the current version of any related written price lists and product descriptions and these Terms and Conditions.
The price lists, product descriptions and terms and conditions after the first contract automatically form the basis of all further contracts between data.mill GmbH and the respective client in the then current version, even if not explicitly referred to these price lists, product descriptions and terms and conditions.
1.2. Future changes. Changes to the price lists, product descriptions and terms and conditions of data.mill GmbH will be communicated to the client in writing and shall be deemed agreed upon if businesses do not object within two weeks and consumers within four weeks.
1.3. Additional agreements. All forms of supplementary agreements, both before the contract and during the contract period shall be valid only in writing. This applies to businesses for the deviation from the written form requirement.
1.4. Elements of the contract made by the client. Service descriptions on the part of the client will only be effective even with knowledge of data.mill GmbH when they are accepted by data.mill GmbH.
Legal texts on the part of the client are only effective, even with knowledge of data.mill GmbH, when data.mill GmbH expressly accepts these legal texts with a comprehensive supplementary note (e.g. "Conditions accepted"). Otherwise data.mill GmbH contradicts the inclusion of legal texts of the client explicitly. The mere adoption of specifications of the client by data.mill GmbH therefore causes no acceptance of legal texts of the customer, even if these include legal texts (such as "Terms and Conditions apply.").
1.5. Approach to contradictions. In the event of discrepancies between the offer, any price lists and product descriptions, as well as the terms and conditions data.mill GmbH applies them in the order named. Thus, the individual offer has priority over all other contractual elements.
In the event of any inconsistency between the contract elements of data.mill GmbH and contractual elements of the client, contractual elements defined by data.mill GmbH have precedence.
1.6. Procedure for invalidity. Should individual provisions of the contract be invalid or unenforceable or ineffective, they shall in contracts with companies be replaced by a valid provision that approximates the economic purpose of the invalid provision.
2. Contract formation
2.1. Offer by data.mill GmbH. Basis for the conclusion of the contract is the respective offer of data.mill GmbH to the client. Offers of data.mill GmbH are non-binding. If the client places an order, the client shall be bound to this order for two weeks after its reception by data.mill GmbH.
2.2. Offer by the client. If the client exceptionally and unsolicitedly, i.e. without previous offer from data.mill GmbH, places an order with data.mill GmbH, businesses are bound two weeks and consumers are bound one week after its reception by data.mill GmbH.
2.3. Acceptance by data.mill GmbH. Therefore, the contract is always only concluded upon the acceptance by data.mill GmbH.
The conclusion always has to be made in written form, e.g. by confirmation, unless data.mill GmbH visibly starts work regarding the order and therefore accepts the order.
3. Scope of performance, order processing and duties of the customer to collaborate
3.1. Scope of performance. The scope of deliverables results from the written performance description of data.mill GmbH.
3.2. Professional performance. Within the scope of the written performance description data.mill GmbH has freedom of execution, so far as there are multiple professional ways of accomplishing given tasks.
3.3. Third-party services. data.mill GmbH is authorized to perform the services itself, or to use the provision of services of knowledgeable parties (third parties).
3.4. Negotiated third-party services. In case that the provision of a service has been agreed with the client as third-party services (agreed third-party services), data.mill GmbH is entitled to instruct the third-party both on its own behalf or on behalf of the client as well as on its own account or on the account of the client.
If third-party services are agreed upon, the third-parties are not vicarious agents of data.mill GmbH.
When dealing with agreed third-party services and for these third-party services between data.mill GmbH and the client no specific performance descriptions or any particular legal texts have been agreed, in the case of the commission of the third-party on behalf of data.mill GmbH the performance descriptions of the third party apply, in case of orders on behalf of the client, the performance description and the legal texts of the third party apply for the client.
If the duration of agreed third-party services reaches beyond the agreed duration of the contract between data.mill GmbH and the client, the client has to enter at the end of the duration of the contract between data.mill GmbH and the third party if the third party was commissioned on behalf of or on account of data.mill GmbH. This also expressly applies in the event of termination of the contract for cause.
3.5. Divisible deliverables. data.mill GmbH is entitled to make partial deliveries for divisible deliverables.
3.6. Interchangeable services. As far as this is consistent with the objectives of the order, data.mill GmbH is entitled to deviate from the performance description and replace services by other equivalent services.
3.7. Expiration. The client must collect all services ordered with data.mill GmbH or transferred to data.mill GmbH for processing on time. In the event that the collection does not take place in time, data.mill GmbH is entitled to charge storage costs and to dispose of the benefits of contracts with companies after three months and for contracts with consumers for six months and to charge the cost of disposal.
3.8. Duties of the customer to collaborate. The client has to provide comprehensive information to data.mill GmbH in writing without delay and provide all services necessary for the provision of services by data.mill GmbH. If the need for the provision of information or services by the client is known only during the performance of services by data.mill GmbH, the client is obliged to immediately provide the information or services.
The client has to check that the information and services provided by himself on their suitability, accuracy and legality.
The client is liable for all damages caused by inadequate, late or lack of cooperation of the client, and in particular for the resulting time and cost and for the adequate legal representation of choice by and for data.mill GmbH.
If data.mill GmbH is availed by third parties due to a violation of law in the context of information or services provided by the client, the client has to keep data.mill GmbH free of harm, non-actionable and to assist in the defense of any claims of third parties.
3.9. Inspection obligations of data.mill GmbH. data.mill GmbH is liable only that the services provided by data.mill GmbH are not unlawful per se.
However data.mill GmbH has no obligation to legally check the services created by data.mill GmbH for any violation of third party rights or any rights violations resulting from the client planned type of use. The client has to perform these legal checks, especially in administrative law, criminal law, competition law, trademark law, design protection law, copyright law, personality rights and data protection law itself or commission appropriately trained legal experts.
Unless data.mill GmbH indicates the need for additional legal analysis of services with respect to other rights or other risks before placing an order or during fulfillment of the order or by discovery of new order details, the responsibility for making the legal verification, with respect to other rights or for taking those risks fall to the client, in the event that data.mill GmbH had reconnaissance or inspection duties. The performance of data.mill GmbH is therefore considered proper and delivered as agreed.
3.10. Rights to services. Basically, data.mill GmbH or its licensor are entitled to all rights to the agreed services.
The client receives the right to use the services as agreed after full payment of the agreed price.
In the event that the scope has not been agreed, this does not include exclusive usage rights in Austria, no right to sublicense or transfer to third parties.
Any license terms of services or works of third parties which are part of the services or works of data.mill GmbH must be observed by the client.
3.11. Right to the final product. The client only has a right to use the service in the agreed form as the final product, but not to the receipt of the foundations necessary for the creation of the services, working aids, intermediate results etc. Unless this has been agreed, data.mill GmbH has no obligation to keep these foundations, work aids or intermediate results etc. after completion of the work.
3.12. Reference. data.mill GmbH is entitled to use data such as the name and logo of the client, project description, pictures and the like to use as a reference or as a reference to the business relationship with the client for all services created by data.mill GmbH in its own promotional material and to refer to data.mill GmbH or possibly another author. Written objections are possible at any time.
4. Special provisions for special service types
4.1. Maintenance. If the services of data.mill GmbH include maintenance or the like, data.mill GmbH owes no specific reaction time, unless certain reaction times are agreed in detail.
4.2. Backup. The client is responsible for the safety and security of their data, in particular before installation, maintenance, or other work by data.mill GmbH.
4.3. Remote monitoring. If data.mill GmbH uses systems for remote monitoring of the functioning of the systems of the client, without billing for the service data.mill GmbH is not responsible for monitoring the functioning of the systems.
4.4. Domain registration. If the services of data.mill GmbH include domain name registration on behalf of the client, this is carried out in each case under the conditions of the respective provider / registrar. In the registration of domain names for the client data.mill GmbH only owes a professional execution, but no success, since this depends on numerous factors that can not be influenced by data.mill GmbH.
4.5. Hosting. If the services of data.mill GmbH include the hosting of programs or data, data.mill GmbH owes no particular failure or data safety, unless any failure or data safety levels have been agreed in detail.
4.6. Search engine optimization. If the services of data.mill GmbH include measures in the field of search engine optimization, data.mill GmbH owes only a professional execution appropriate to achieve the agreed objectives, but no success, since this depends on numerous factors, that can not be influenced by data.mill GmbH.
4.7. App programming. If the services of data.mill GmbH include programming apps data.mill GmbH only owes the execution according to the rules of app stores known at the time of the offer or at the time of completion already fixed rule changes to the app stores. Any subsequent changes are not part of the agreed scope, but are offered separately, commissioned and charged.
4.8. Presentations. For the preparation and execution of presentations data.mill GmbH is entitled to a fee. If after presenting data.mill GmbH receives no order to complete the proposed services, the client is prohibited to otherwise use or disclose to third parties ideas, concepts and works contained therein independently of the question whether these ideas, concepts and works are subject to legal protection, and regardless of the price paid for the presentation.
4.9. Graphic. If the services of data.mill GmbH includes the production of graphics, the offer shall cover only a draft and minor modifications. Should the draft despite expert and execution to order not comply with the taste of the customer, the creation of additional designs is chargeable.
4.10. Print. If the services of data.mill GmbH include the creation of printed matter, the customer must provide print data according to the requirements of data.mill GmbH.
The client has to accept technical reasons and customary deviations in the color and material, as long as no exact specifications have been agreed. In case of the agreement of exact specifications additional costs are to be replaced by the customer if necessary to accomplish them.
Delivery quantities may deviate up to 5% for simple works and up to 10% for challenging work and will be charged on a pro rata basis based on continuous printing. When materials are provided the tolerance sets of the the supply industry are taken into account.
For the spelling in German, the latest edition of the Duden ("new spelling") shall prevail. Proofs are submitted to the client by appointment only. However, data.mill GmbH may submit proofs without prior agreement.
4.11. Consulting services regarding the General Data Protection Regulation (GDPR) and related subjects data.mill GmbH does not provide consulting services as a lawyer. Therefore data.mill GmbH cannot give authoritative statements about the validity of single measures during the integration of GDPR compliant processes.
5.1. Unavoidable or unforeseeable events. Unavoidable or unforeseeable events - in particular negligence of the client in fulfilling its obligations and by data.mill GmbH unpredictable delays, data.mill GmbH or its contractors - postpone deadlines by the duration of the unavoidable and unforeseeable circumstances plus the duration of the in such a case necessary organizational measures. data.mill GmbH must notify the client in writing.
5.2. Grace period. Failure to comply with deadlines and dates shall entitle the client to claims only, if it granted a reasonable, but at least fourteen day grace period in writing.
6.1. Prices. All prices are ex business domicile or branch office of data.mill GmbH in contracts with businesses in Euro excluding VAT, for contracts with consumers including VAT at the legal rate.
6.2. Estimates. Cost estimates of data.mill GmbH towards businesses are not binding. The same applies towards consumers if expressly advised of the non-binding nature of the cost estimate before the issuance.
If after the grant of a non-binding cost estimate it is foreseeable that the actual cost exceed the previously estimated costs by more than 15% data.mill GmbH has to advise the client on the higher costs in writing. The cost overrun is considered approved by the customer, if the customer does not object in writing within one week after this notice while advising of a cheaper alternative. In case of a cost overrun of up to 15% no special note is required. This cost overrun is considered to be approved by the client from the outset.
6.3. Requirement specifications. The creation of a specification by data.mill GmbH is generally chargeable.
6.4. Additional services. All services of data.mill GmbH that are not expressly covered by the agreed fee will be paid for separately.
6.5. Advance fee. data.mill GmbH is entitled to demand advance payments on costs to cover their own expenses.
6.6. Partial services. data.mill GmbH is entitled to charge partial services.
6.7. Unjustified withdrawal. In the event that the customer without grossly negligent or wilful misconduct of data.mill GmbH resigns from its job completely or partially, data.mill GmbH nevertheless deserves the agreed fee. data.mill GmbH in this case must only deduct savings from not yet made purchases of goods and external services.
6.8. Price adjustment. In contracts for an indefinite period and for contracts with automatic renewal of the contract period data.mill GmbH is entitled to appropriate annual price adjustments taking into account factors such as inflation, the consumer price index, the collective contracts and similar external factors. Even after contracting and otherwise data.mill GmbH is entitled to an appropriate price adjustment for individual services when the cost of these services increase by more than 10%, without being influenced by data.mill GmbH. Consumers are entitled to a reduction of the fee in the light of reverse conditions.
7.1. Maturity and payability. The invoices of data.mill GmbH are payable strictly net without any deduction from the invoice date and are, unless otherwise agreed to be paid within 14 days of receipt of the invoice.
7.2. Reservation of ownership. Until the full payment by the client a reservation of ownership in favour of data.mill GmbH to the delivered goods it is agreed.
7.3. Prohibition of offsetting and retention. Businesses are not entitled to offset their own claims against claims of data.mill GmbH, except the requirement of the client has been accepted in writing by data.mill GmbH or judicially determined. A lien in favour of businesses is excluded.
7.4. Late payment. In the event of late payment the statutory interest valid between businesses but at least 9% per annum, for contracts with consumers interest at the rate of 9% per annum is to be paid for contracts with businesses. The client must pay all costs necessary for the collection of the claim of costs and expenses, such as in particular collection fees or other costs for an appropriate prosecution.
7.5. Continued late payments. After an unsuccessful reminder to the client, granting an at least 7-day grace period data.mill GmbH can immediately due all contracted services and partial services and temporarily halt all services until full payment of all outstanding invoices is made also in the context of other contracts concluded with the client, and the provision of not paid services.
After fruitless expiry of a further week data.mill GmbH is entitled to withdraw from all contracts and in addition to the payment of the services already provided to claim the compensation for lost profits. Thus data.mill GmbH is also entitled to discontinue already paid for services, if savings result from it. In this case data.mill GmbH is entitled to attribute the savings against the outstanding claims.
Regardless of these possibilities data.mill GmbH can file a lawsuit in court, of course, immediately after the due date.
7.6. Installment. Insofar data.mill GmbH and the customer enter into an installment payment agreement, date loss is agreed in the case of even one non-timely rate payment.
8. Confidentiality obligation and non-solicitation
8.1. Confidentiality. The client has to keep all to them known secrecy worthy information on data.mill GmbH, their projects and their clients secret and may also not utilize this for themselves. This agreement remains even after a possible contract end. In a breach of this obligation a penalty in the amount of EUR 25,000.00 has to be paid per violation.
8.2. Solicitation. The customer may not poach clients or employees of data.mill GmbH. This agreement endures three years after a possible contract end. In a breach of this obligation a penalty in the amount of EUR 25,000.00 has to be paid per violation.
9.1. Warranty. With regard to businesses the right to warranty is limited for 6 months, and the right to warranty-recourse is limited to 12 months from delivery.
9.2. Reprimand obligation. Business owners have to accept ("release") delivered or obtainable services in writing no later than 14 days after delivery or preliminary acceptance of a partial service by data.mill GmbH. Any defects have to be reprimanded in writing. In case of delayed acceptance or using the services in real operation the services count as accepted.
Hidden defects that occur after the expiry of 14 days, but within 6 months after delivery must be reported by businesses also within 14 days of recognition.
The complaint of the business has to describe the defect in detail and comprehensible.
In case of defects that do not occur continuously, the exact times and conditions of occurrence of defects are to be pointed out.
In case of non-timely complaints of defects by businesses, the assertion of warranty and claims for damages and the right to challenge errors are excluded due to defects.
Even consumers are asked, for the purposes of easier detectability to review all services and deliveries immediately and as soon as possible to notify any defects in writing and justify them.
9.3. Corrective action. With timely and justified complaint of the business, the defects will be corrected within a reasonable period, the client has to allow data.mill GmbH for all investigation and necessary corrective measures.
Businesses only have the right to improvement or replacement of the service by choice of data.mill GmbH. data.mill GmbH is entitled to refuse the improvement or replacement of the service, if such action is impossible or if these measures on the one hand for data.mill GmbH are associated with a disproportionate effort on the other hand the deficiency for the client is not a significant limitation. Only in these cases, the client shall be entitled to a corresponding reduction in price.
9.4. Errors, Laesio enormis. With regard to businesses the right to voidability due to error and laesio enormis is excluded.
9.5. Damages. Claims for damages of the client, except for personal injury are excluded, unless they are in contracts with businesses not due to blatantly gross negligence or intent or in contracts with consumers not to gross negligence or intent of data.mill GmbH. Claims for compensation of businesses expire six months from knowledge of the damage; but in any event after three years from the act of infringement.
9.6. Burden of proof. A burden of proof to the detriment of data.mill GmbH is excluded for contracts with businesses. In particular, the existence of the defect at the time of delivery, the time of discovery of the defect, the timeliness of the complaint and the presence and degree of fault is to be proved by the client.
10. Early termination for cause
10.1. Important reasons. The parties have the right to terminate the agreement for cause with immediate effect. An important reason exists in particular if the other party continues, despite a written reminder setting a reasonable, at least fourteen day grace period to resolve the contract breach from this for reasons contrary to fundamental provisions of the contract.
11. Withdrawal of consumers
11.1. Withdrawal. Consumers in long-distance transactions and with contracts formed outside of the data.mill GmbH offices have the right to withdraw from contracts within fourteen days without giving any reasons.
11.2. Withdrawal period. The withdrawal period is fourteen days
- in the case of a service contract from the conclusion of the contract
- or in the case of a contract for the supply of goods from the date on which the consumer or a representative of third party, other than the carrier, has taken possession of the goods
- or in the case of a contract for several goods ordered under a single order, which are supplied separately, from the date on which the consumer or a representative of a third party named by the consumer, other than the carrier, has taken possession of the last goods
- or in the case of a contract for the delivery of a good consisting of multiple lots or pieces, from the day on which the consumer or a representative of a third party named by the consumer, other than the carrier, has taken possession of the last installment or the final piece
- or in the case of a contract for regular delivery of goods during a specified period of time, from the day on which the consumer or a representative of a third party named by the consumer, other than the carrier, has taken possession of the first delivery
To comply with the cancellation period, it suffices that consumers send their communication concerning the right of withdrawal before the withdrawal period.
11.3. Declaration of revocation. To exercise the right of withdrawal, consumers must inform data.mill GmbH by way of unambiguous statement (as a posted letter, fax or email) about their decision to withdraw from this contract. Consumers can use the attached exemplary withdrawal form, which is not mandatory.
11.4. Exemplary withdrawal form. To cancel the contract, please complete the attached form and return it to data.mill GmbH.
11.5. Effects of withdrawal. If consumers withdraw from a contract, data.mill GmbH has to immediately repay all payments data.mill GmbH received by the consumer, including the costs of supply (with the exception of the additional costs arising from the fact that the consumer selected a type of delivery other than that offered by data.mill GmbH, which is standard delivery), latest within fourteen days from the date on which the notification of withdrawal of this contract was received by data.mill GmbH.
For this repayment data.mill GmbH uses the same payment that the consumer has used in the original transaction, unless the consumer has expressly agreed otherwise; in no case will the consumer be charged fees for this repayment.
The consumer has to return the goods immediately and in any event not later than fourteen days from the day on which the consumer informed data.mill GmbH of his revocation of the contract. The deadline is met if the consumer sends the goods before the period of fourteen days.
data.mill GmbH may withhold the reimbursement until data.mill GmbH has received the returned goods, or until the consumer has supplied evidence that the consumer has returned the goods, whichever is earlier.
The consumer bears the direct cost of returning the goods.
The consumer only has to pay for any diminished value of the goods, where the value loss is due handling the goods in a way not necessary to ascertain the nature, characteristics and functioning of the goods.
11.6. Exclusion of right. The consumer has, among other things no withdrawal right for long-distance contracts or off-premises contracts:
a. Services when data.mill GmbH - based on an explicit desire of the consumer as well as a confirmation of the consumer through its knowledge of the loss of the right to withdraw with full contract - had then had begun before the end of the withdrawal period with the execution of the contract and the service and completely fulfilled the contract
b. goods which were manufactured according to customer specifications or clearly tailored to personal needs
c. goods which have been mixed after its delivery by their nature inseparably with other goods
d. audio or video recordings or computer software, which are delivered in a sealed package, provided that were unsealed after delivery
e. newspapers, periodicals or magazines with the exception of subscription contracts for the supply of such publications
f. the supply of digital content not stored on a tangible medium, when data.mill GmbH - with the express consent of the consumer connected to its attention of the loss of the right to withdraw at premature start of the contract, and by making available a copy or confirmation - before the end of the withdrawal period started with delivery, and
g. urgent repairs or maintenance, for which the consumer data.mill GmbH has specifically requested a visit to carry them. When providing data.mill GmbH at such a visit more services which has not explicitly requested, the consumer, or supplies data.mill GmbH goods, which are needed for the maintenance or repair not necessarily as spare parts, as is the consumer with regard to these additional services or goods the right of withdrawal.
12. Final Provisions
12.1. Place of performance, transfer of risk. Place of performance is the headquarters of data.mill GmbH. In shipping, the risk always passes to the customer as soon data.mill GmbH has handed over the goods to the transport company.
12.2. Applicable law. The legal relationship between the client and data.mill GmbH is exclusively according to Austrian law to the exclusion of international conflict of law rules. The provisions of the CISG shall not apply.
12.3. Jurisdiction. As the place of jurisdiction for all disputes the factually competent Austrian court in Salzburg is agreed. data.mill GmbH is also entitled to take legal action at other locations.
Exemplary cancellation form
I / We (*) hereby give notice(s) to withdraw from my / our (*) contract entered into for the purchase of the following products (*) / provision of the following services (*)
(only with message on pager)
(*) Please delete inapplicable items