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General Terms and Conditions of HELLOLY GmbH
March 2023
These General Terms and Conditions ("GTC") apply to all deliveries and services provided by HELLOLY GmbH, Rainerstraße 25, 4020 Linz ("HELLOLY") to its contractual partners ("customers", together with HELLOLY the"parties" or individually a"party") within the framework of a contract ("contract"). The mutual rights and obligations of the Parties are primarily determined by the content of the Customer's contractual offer accepted by HELLOLY. The contractual services owed by HELLOLY are referred to as"Services" or"Services".
The GTC apply to contracts with consumers within the meaning of Section 1(1)(2) of the Austrian Consumer Protection Act ("KSchG") and to contracts with entrepreneurs within the meaning of Section 1(1)(1) KSchG ("consumers" or"entrepreneurs").
In relation to entrepreneurs, the GTC shall also apply to future transactions between the parties, provided that they have a material reference to the present contractual relationship, even if no further reference is made to them when the contract is concluded in the future. The GTC shall apply to consumers if they have been agreed and made available prior to the conclusion of the respective transaction. Further terms and conditions of HELLOLY shall apply in accordance with their agreement.
General terms and conditions of the customer (entrepreneur) shall only apply if HELLOLY has expressly agreed to them in writing.
A contract between HELLOLY and the customer is concluded when HELLOLY has issued a confirmation of the order or contract (in writing for entrepreneurs) after receipt of the order or contract. Alternatively, a contract between HELLOLY and the customer is concluded when HELLOLY has begun with the actual provision of services (e.g. setting up web space or placing necessary orders with third parties, providing user login and password, etc.). We save the text of the contract and send you the order confirmation by e-mail. For security reasons, your order data is no longer accessible via the Internet. The content of the contract, all other information, customer service, data information, etc. are provided in German.
If the customer is a consumer, the relevant provisions of the FAGG shall apply to customer contracts concluded by way of distance selling (distance or off-premises transactions, Section 1 FAGG). The customer may withdraw from the contract within 14 days of its conclusion. No reasons need to be given and no specific form is required. The consumer can use the sample cancellation form https://www.helloly.com/widerrufserklaerung.pdf or declare their cancellation to HELLOLY (contact details according to point 12.7.) in any other way. In order to comply with the cancellation period, it is sufficient for the customer to send a notification of the exercise of the right of cancellation before the expiry of the cancellation period. In the event of cancellation, any payments made will be refunded.
If the customer has requested HELLOLY to commence fulfilment of the contract before expiry of the cancellation period and the customer nevertheless withdraws from the contract, the customer shall pay HELLOLY a proportionate amount of the agreed remuneration. If HELLOLY has already completely fulfilled the contract in this case, the right of cancellation lapses and the full fee must be paid.
HELLOLY's customers are not authorised to transfer all rights and obligations arising from this contract to a third party without prior written consent (in the case of entrepreneurs). However, individual rights may be transferred (e.g. claims for repayment).
HELLOLY is authorised to transfer its obligations in whole or in part, i.e. also with regard to individual services, or the entire contract to a third party with debt-discharging effect and will inform the customer of this. This only applies to entrepreneurs. HELLOLY is also authorised to employ vicarious agents.
The use of the contractual services by third parties, as well as the transfer of these services to third parties against payment, requires the consent of HELLOLY, which must be given expressly and in writing to entrepreneurs.
HELLOLY's sales partners, employees and technical staff are not authorised to make statements, commitments or accept payments on behalf of HELLOLY. A restriction of authorisation or lack of authorisation of HELLOLY's sales partners or sales employees shall only be effective vis-à-vis a consumer if the consumer was aware of it.
For technical reasons, it is not possible that the services provided will be accessible without interruption, even if due care is taken, and that the desired connections can always be established. For example, for technical reasons it cannot be guaranteed that e-mails will arrive with certainty or that error messages will be sent. Spam filters, virus filters, etc. (whether set up by HELLOLY or by the customer) may prevent the delivery of e-mails. The same applies to delays or loss of data during transmission. The provisions of this point 2.1. do not affect the warranty and liability of HELLOLY in accordance with points 7. and 8.
HELLOLY shall not be liable to entrepreneurs in the event of restrictions or interruptions to the service in the following cases of force majeure: official orders, restrictions to the services of other operators, changes to the technical infrastructure not caused by HELLOLY or in the event of repair and maintenance work.
An official order or a court order may legally oblige HELLOLY to block access to certain services. If HELLOLY is obliged to block a service in this way, the service can no longer be used by the customer.
HELLOLY is only responsible for the functionality and compatibility of the software provided with other programmes of the customer in accordance with the contractual agreement. The warranty claims of consumers according to point 7. are not limited by this point 2.2.
The initial provision of the services shall take place within the period agreed at the time of the order or - whichever is later - from the time at which the customer has fulfilled all the technical and other requirements incumbent upon it (point 6.1.) ("provision period").
HELLOLY shall rectify service disruptions as quickly as possible within the scope of its warranty obligations and liability in accordance with Sections 7 and 8. In the event of delays, point 2.1. shall apply mutatis mutandis. The customer shall support HELLOLY as far as possible in determining the cause of the fault and error.
HELLOLY will take all measures to protect the data stored by HELLOLY within the scope of professional diligence. Should a third party unlawfully succeed in gaining control of data stored by HELLOLY or continuing to use it, HELLOLY shall only be liable in the event of a breach of duty and in accordance with points 7 and 8. The same applies if the customer causes the loss of their own data.
In the event of a service failure, HELLOLY will restore the defective components, including the original settings of the operating system, free of charge, provided a backup exists. Data will be restored from the last backup, which will be carried out once a week by HELLOLY if a corresponding agreement has been made. If no backup has been agreed or if the customer requires additional backup copies, the customer is responsible for this. The backup copies should be stored at a location other than the server.
If software is supplied, HELLOLY shall grant the customer a non-transferable, non-exclusive right to use the software, unless expressly agreed otherwise, if the customer accepts the licence conditions applicable to the software in advance. If licensed third-party software is used, the customer will be provided with the licence conditions of the third party in addition to the licence conditions of HELLOLY prior to the conclusion of the contract, which must also be complied with. Software retrieved by the customer that qualifies as "public domain" or "shareware" is only provided by HELLOLY. The customer must comply with the terms of use and any licence regulations specified by the author for such software. Before passing on the software to third parties, the customer must ensure that this is permitted within the scope of the licence or usage provisions.
In addition to the software made available to the customer by HELLOLY, the customer may only install additional software if this has been contractually agreed (except in the case of consumers: in writing) and the software serves a lawful purpose that is not harmful to third parties. The customer must observe the manufacturer's software licence conditions. Updates must be obtained independently; HELLOLY will not provide any updates or upgrades.
If the customer violates these provisions, HELLOLY may deactivate installed software if it jeopardises the operational or data security of HELLOLY or third parties or causes disruptions to HELLOLY's facilities or services and the customer is at fault. The customer will be informed of any deactivation by e-mail without undue delay.
The customer acknowledges that the fixed fees do not include Internet access (Internet connectivity), nor any resulting transmission fees (e.g. telephone costs) or fees charged by third parties for the use of services on the Internet. Unless otherwise agreed, any packaging and shipping costs shall be borne by the customer.
Prices quoted are inclusive of statutory VAT. Gross prices are quoted to consumers.
Charges are subject to the following value adjustment clause: Periodic charges are adjusted according to the consumer price index 2020 published monthly by Statistics Austria (base year 2020) or an index replacing it. If the right to value adjustment is not exercised, this shall not constitute a waiver of future adjustments. The customer has no right to extraordinary cancellation due to such index adjustments.
Domains are also covered by the value adjustment clause.
In individual cases, the costs charged by a third-party registry for certain domains may exceed the fees specified by HELLOLY when the order is placed ("premium domains"). This circumstance cannot be influenced by HELLOLY. In this case, the customer's order cannot be executed (impossibility).
The customer will be contacted by HELLOLY as to whether he/she would like to finalise the order at the higher domain costs instead. If the customer refuses, the order will not be executed and any payments already made by the customer will be refunded.
The customer invoice contains the following information: Customer name, customer address, invoice date, calculation period, invoice number, individual charges, total price excluding VAT, VAT, total price including VAT and any discounts granted.
HELLOLY makes the invoice available for retrieval in the customer's customer area at http://my.helloly.com and notifies the customer by e-mail.
Unless otherwise agreed in detail, the fees are due at the beginning of each service period (year or month) agreed at the time of ordering. Unless otherwise agreed, payments are due upon receipt of the invoice without deductions. The billing dates are specified in the contract (order or purchase order). In case of doubt, one-off costs shall be invoiced immediately after conclusion of the contract and ongoing costs shall be invoiced monthly in accordance with point 5.2.
When paying by credit card, the customer must ensure that the credit card has not been blocked or expired. The customer must renew his credit card in good time before it expires. Any charges associated with a breach of this provision shall be borne by the customer. Delays in payment shall be borne by the customer.
In the case of payment by direct debit authorisation, these provisions shall apply accordingly. The customer must also reimburse the charges incurred in the event of a chargeback.
For consumers, the obligation to bear costs in accordance with this point 5.3 shall only apply in accordance with the statutory provisions in the event that they are at fault.
If the customer is in default of payment (non-compliance with payment deadlines), HELLOLY shall be entitled to withhold its services (see sections 10.2. and 10.4.) or to terminate the contractual relationship with immediate effect after an unsuccessful payment reminder setting a grace period of at least seven days and at least one additional reminder setting a grace period. Furthermore, as an alternative to cancellation, HELLOLY may also make the further provision of services dependent on an appropriate security deposit or advance payment.
Default interest of 4 % p.a. shall apply for both parties. HELLOLY is entitled to charge all costs necessary and incurred for appropriate legal action in the event of culpable default of payment.
HELLOLY may charge the customer the reminder fees of EUR 10.00 incurred by HELLOLY for a reminder, provided that the delay in payment is due to the customer's fault and the reminder is necessary for appropriate legal prosecution and is in reasonable proportion to the claim being pursued. HELLOLY's further claims for damages against entrepreneurs remain unaffected.
The customer must raise objections to the claims stated in the invoice within three months of receipt of the invoice. Failure to raise objections shall be deemed a declaration that the claim is recognised by the customer. However, such an acknowledgement does not preclude the assertion of a claim in court. A legal claim must be asserted within six months of receipt of the invoice. HELLOLY shall inform the customer in the invoice of these deadlines and the legal consequences if the deadlines are not met. This point 5.5 does not apply to consumers.
The due date of the invoice amount shall not be affected by objections. Existing rights of set-off or retention due to counterclaims of the customer or breaches of contract by HELLOLY shall remain unaffected.
The offsetting of outstanding claims against HELLOLY and the withholding of payments due to alleged claims of the customer which are not recognised by HELLOLY are hereby excluded. However, if the customer is a consumer, he/she may offset in the event of HELLOLY's insolvency. Furthermore, the customer may set off claims that are legally related to those of the entrepreneur and claims that have been established by a court of law. Finally, offsetting is possible with claims recognised by the entrepreneur.
If the agreed scope of services does not include certain prerequisites for the service, the customer must provide or obtain these at its own expense. The customer shall provide HELLOLY with the necessary information to enable the installation and performance of the services.
The customer undertakes to comply with applicable legal regulations. In particular, the customer is advised of its obligations under the Unfair Competition Act, Trademark Act, Prohibition Act, Media Act, Copyright Act, Pornography Act, as well as the statutory provisions on defamation, insult or damage to credit, civil defamation and/or damage to credit. The customer undertakes not to store any unlawful content or information on the server, nor to refer in any way to unlawful content offered by him or third parties, or to publish links to such offers.
The customer undertakes not to use the contractual services in any way that leads to unlawful interference with third parties or jeopardises the security or operation of HELLOLY or others. Spamming (aggressive direct mailing via e-mail) or any use of the service to transmit threats, obscenities, harassment or to harm other Internet users is prohibited.
Furthermore, the customer undertakes to inform HELLOLY if claims are made against him/her in or out of court arising from the use of the contractual services.
The customer undertakes to use suitable and sufficiently secure technical equipment and settings. Sufficient security includes firewalls and regular updates of hardware and software, including virus protection, for all devices from which HELLOLY's services are used. The customer is obliged to secure its end devices by using passwords. They must take precautions to ensure that their passwords are not accessible to anyone other than the persons authorised to use the service. The customer undertakes not to store passwords or other access data on the hard drive of the same devices from which HELLOLY's services are used.
The customer is obliged to notify HELLOLY immediately of any suspicion that its access data or other secret information relating to HELLOLY's services may have become known to unauthorised third parties.
The customer is advised that retrieving data from the Internet may result in harmful components (such as viruses or Trojan horses) being transferred to their end device, which may have a negative impact on their data or lead to the misuse of their access IDs. Such harmful effects can also be caused by "hackers". HELLOLY is only responsible for the security of the user's end devices within the scope of its own contractual services. Beyond this, responsibility only exists within the framework of further agreements. HELLOLY's warranty and liability remain unaffected in accordance with points 7 and 8.
In order to enable HELLOLY to rectify faults, the customer must inform HELLOLY of faults in the provision of services. If the customer fails to do so, the customer shall bear any damages and expenses resulting from the failure to notify HELLOLY. In particular, the costs of another company commissioned by the customer shall not be borne by HELLOLY in this case.
Warranty claims are fulfilled by improving the service. The customer must notify HELLOLY of any defects immediately, but within fourteen working days at the latest, in writing and in as much detail as reasonably possible (notice of defects), otherwise warranty claims in respect of these defects will be forfeited. This point 7. does not apply to consumers.
HELLOLY shall only be liable for damage to property in the event of intent or gross negligence, but not for slight negligence. Liability for consequential damage (pure financial loss) towards entrepreneurs is excluded, except in the case of a breach of the main obligation to perform. In all other respects, point 7. shall apply accordingly to claims for damages against entrepreneurs. HELLOLY assumes no liability towards entrepreneurs for third-party content that is (to be) transported via the Internet or is accessible via the Internet. The customer's statutory right to terminate the contract for good cause remains unaffected, in particular in the event of unreasonable service failures or restrictions.
HELLOLY's services offer no protection against harmful data retrieved by the customer from the Internet or e-mails from third parties that are delivered by HELLOLY, nor for services provided by third party service providers. Furthermore, HELLOLY's services offer no protection against damage caused by viruses, Trojan horses, attacks by hackers, etc. Anything to the contrary shall only apply if an express (and in the case of entrepreneurs: written) agreement has been concluded.
In such cases, liability only exists in accordance with point 8.1.
If the customer causes damage solely due to non-compliance with the contract with HELLOLY and its components (including these General Terms and Conditions), in particular through use contrary to the contract, HELLOLY shall not be liable for this. In addition, HELLOLY shall remain liable for its own breaches of duty in accordance with section 8.1.
If the customer breaches its contractual or statutory obligations and HELLOLY is legitimately held liable by third parties as a result of this breach, the customer is obliged to indemnify and hold HELLOLY harmless. HELLOLY's own liability towards the customer or third parties remains unaffected. As far as possible, the customer shall co-operate in avoiding (further) damage.
Continuing obligations between HELLOLY and the customer may be concluded for an indefinite or definite period of time. If no end date has been agreed, contracts are concluded for an indefinite period.
Contracts concluded for an indefinite period may be cancelled in writing by either party with one month's notice to the end of each performance period. The service period is the period for which the fee is calculated on the basis of the contractual agreement (e.g. one month or one year).
If a waiver of the ordinary right of cancellation has been agreed for a certain period (initially a maximum of 24 months for consumers) ("minimum contract period"), ordinary cancellation by the customer shall only take effect as soon as the minimum contract period has expired.
If the contract is terminated by HELLOLY prior to the expiry of the minimum contract term by extraordinary cancellation and the customer is at fault, the customer must pay a residual fee. The remaining fee is due at the time of termination. The residual fee is the fixed fee that would have been due for the period between the premature termination of the contract and the end of the minimum contract period if the contract had been in force. The amount of the residual fee can be reduced by judicial mitigation pursuant to Section 1336 (2) ABGB if it is excessive.
HELLOLY may terminate the contractual relationship for the following important reasons:
Points a) to f) do not apply to consumers. They shall only be effective vis-à-vis entrepreneurs in accordance with § 25a and § 25b IO and shall not be considered important reasons if advance payment or securities have been agreed to prevent a deterioration of HELLOLY's economic situation.
The statutory right of both parties to terminate the contract for good cause remains unaffected.
Instead of cancelling the contract, HELLOLY may also proceed with retention of its services (blocking) if HELLOLY is entitled to retention rights. In this case, HELLOLY is authorised to interrupt or block services even partially. In any case, HELLOLY shall only block services in the cases of points h) and i) to the extent and for as long as this is necessary to protect HELLOLY's infrastructure, to protect third parties and to prevent legal infringements.
In the event of legal infringements by individual pieces of information or content published on hosted websites, HELLOLY may remove them or block access to them.
In all cases, HELLOLY will inform the customer immediately of the measure taken and the reason for it. HELLOLY's right to subsequently terminate the contract for good cause remains unaffected.
If the contract is cancelled for good cause or blocked for reasons attributable to the customer, HELLOLY's claims to the fee until the next termination date remain unaffected (residual fee). The amount of the residual charge is subject to the judicial right of moderation pursuant to Section 1336 (2) ABGB if it is proven to be excessive by the customer. In the case of consumers, the residual charge shall only apply in the event of fault.
HELLOLY's obligation to provide (contractual) services ends upon termination of the contractual relationship. HELLOLY is therefore authorised to delete stored or retrievable customer data or software provided for the duration of the contract from this point in time. In the event of cancellation by the customer, HELLOLY may delete data immediately from the end of the contract. If the contract ends for any other reason, HELLOLY will inform the customer by e-mail at least 7 days in advance of the impending final deletion. In addition, the customer is responsible for the timely retrieval, storage and backup of content data.
If agreed upon conclusion of the contract, the terms and conditions and guidelines of the registry apply to domains in addition to HELLOLY's GTC. The terms and conditions applicable to nic.at domains are available at www.nic.at/de/agb.
If agreed upon conclusion of the contract, the Uniform Domain-Name Dispute-Resolution Policy of ICANN ("UDRP"), which is available at http://www.icann.org/en/dndr/udrp/policy.htm, also applies to domains that are subject to the coordination of the Internet Corporation for Assigned Names and Numbers ("ICANN",[icann.org]) (including domains ".com", ".net", ".org", ".info" and ".biz").
If the domain is no longer available, HELLOLY will refund the costs paid.
The domains ".at", ".co.at" and "or.at" are administered by the registry nic.at. HELLOLY reserves the requested domain at nic.at in the name and for the account of the customer. HELLOLY is only authorised to dispose of domains on behalf of the customer.
HELLOLY does not check the legal admissibility of the domain, for example with regard to trademark or copyright law. The customer is obliged to check and comply with the relevant legal provisions. For the rest, point 9 applies.
If the customer terminates its web hosting contract with HELLOLY, HELLOLY automatically cancels the domain for the customer. Irrespective of the termination of the web hosting contract with HELLOLY, the customer is entitled to transfer their domain to another provider.
In the case of domains for which nic.at is the registry (see point 11.1.2), the cancellation of the domain requires a separate order from the customer. Alternatively, the customer is offered the option of keeping his domain and transferring it to another provider. It should be noted that if the customer does not place an order for deletion or transfer, HELLOLY is not authorised to dispose of the domain. The domain therefore remains valid and the customer remains obliged to make further payments for the domain.
The customer is authorised to instruct HELLOLY to transfer existing domains to HELLOLY. If it is not technically possible to carry out the transfer and this is not within HELLOLY's sphere of influence or is the fault of HELLOLY, the customer must still pay the fee for the transfer order. If the customer places a new order, a fee must be paid again.
The contracting parties agree that Austrian law shall apply. If the consumer is domiciled or habitually resident in Austria or is employed in Austria, only the court in whose district the domicile, habitual residence or place of employment is located shall have jurisdiction to hear an action against the consumer; this shall not apply to legal disputes that have already arisen. The UN Convention on Contracts for the International Sale of Goods and all provisions relating to the UN Convention on Contracts for the International Sale of Goods are expressly excluded. For contracts with companies, our registered office is agreed as the place of jurisdiction.
Amendments and additions to these GTC and the contract (order, purchase order or other parts of the contract) must be made in writing; there are no verbal collateral agreements. This provision does not apply to consumers.
All notifications and declarations by the customer relating to this contractual relationship must be made in writing. This does not apply to consumers.
We undertake to participate in the arbitration procedure of the Internet Ombudsman's Office in the event of disputes: www.ombudsstelle.at
Further information on the types of procedure can be found at www.ombudsstelle.at. The ODR platform can also be used to resolve disputes with our company: https://ec.europa.eu/consumers/odr
The customer must notify HELLOLY immediately in writing of any changes to its name or address. If no notification of change is made, documents shall be deemed to have been received by the customer if they were received at the address last notified by the customer. If, in the event of a change, a new invoice is subsequently issued, the due date shall be that of the original invoice.
Electronic declarations shall be deemed to have been received if they have been sent to the e-mail address last notified by the customer. In the case of consumers, they shall only be deemed to have been received when they can be retrieved by the consumer under normal circumstances.
The possible invalidity of individual provisions shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid provision. This provision only applies to entrepreneurs.
HELLOLY's contact details are available on the HELLOLY website at https://www.helloly.com.
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