4. CONFIDENTIALITY, DATA MODIFICATION AND RECEIPT OF STATEMENTS
You are obliged to keep your personal login information and other passwords for the A1 Smart Home system confidential, to desist from passing on such information to third parties, and to ensure safe storage.You should immediately change the code for your own safety, if You suspect that unauthorised persons have come to know about it. If only We are able to change the code, You should immediately instruct us accordingly.
Please notify us immediately in writing, however, within 2 weeks after the change at the latest, if your data (e.g. name, address, e-mail address, invoice address, companies’ register number, legal form) or your bank details have changed.
We may also send You statements that are important in legal terms by e-mail, SMS or through other electronic media, e.g. invoices, reminders or notices of termination. Such statements shall be deemed to have been received as soon as You are able, under normal conditions, to access them (e.g. e-mail) or to take note of the same (e.g. SMS).
Within Austria, letters sent by ordinary mail shall be deemed to have been received 2 workdays after posting.
Exception: You inform us that the postal item was delivered later or not at all.
Please note: Statements shall also be considered to have been sent if You have not received them because You failed to notify us of the change of your address.
5. CONTRACT AMENDMENT BY MUTUAL AGREEMENT
Contract amendment by mutual agreement: A1 may also agree amendments with the customer. At least 1 month prior to the proposed amendments entering into force, the customer shall receive an offer regarding the contract amendment by mutual agreement in writing (also by e-mail to the notified address), e.g. printed on the invoice or enclosed with the invoice. This shall contain all amendments. Even if A1 amends only part of a contract clause, A1 shall send the whole new contract clause to the customer. Additionally, the customer will find a reference to the full text version at www.A1.net. At the same time, A1 shall inform the customer about the effective date of the proposed amendments.
The offer shall be deemed to have been accepted if the customer fails to raise an objection in writing (also by means of the contact form) by the effective date of the proposed amendments. In this offer, A1 shall inform the customer about that deadline, as well as about the significance of his/her behaviour.
If the annual average (based on a calendar year) of the Consumer Price Index (“Annual CPI”) of Statistics Austria changes, this shall have the following effects on those of your fees that are marked as “(index-linked)”:
– We shall be entitled to increase the fees for the subsequent calendar year in line with the increase in the Annual CPI.
– We shall be obliged to pass on decreases of the Annual CPI and to reduce the relevant fees in accordance with the decrease.
We shall inform You about said adjustments in writing (e.g. by printing the relevant information on your invoice).
Unless otherwise agreed, the extent of fee adjustments derives from the proportion of the change in the Annual CPI for the last calendar year prior to adjustment as compared to the Annual CPI for the penultimate calendar year prior to the adjustment (basis of the index: Annual CPI 2015 = 100). We shall not take into account any fluctuations of 2% (fluctuation range) as compared to the basis of the index. If, however, this fluctuation range is exceeded or undercut in subsequent years, we shall adjust the fees in full. The new value represents the new basis of the index for future adjustments.
Note: Any obligation to reduce the fees shall decrease to the extent that We failed to exercise a right to increase the fees in the previous year.
Fee adjustments shall take place in the year after the basis of the index has changed, but no earlier than in the year following conclusion of the contract:
– Fee increase: 1 April until 31 December.
– Fee reduction: always on 1 April.
If the Annual CPI is no longer published, it shall be replaced by its official successor.
The right to amend the contract acc. to item 5 shall remain unaffected.
We shall be liable for any damage caused by us vis-à-vis consumers according to applicable legal provisions, and vis-à-vis entrepreneurs – unless any damage to persons is involved – only in case of intent or gross negligence.
We shall not be liable for any damage or defects
1. due to software modifications and changes to the required system settings, provided they are carried out by You or any persons not attributable to A1,
2. in case of application errors or
3. relating to service assignment costs due to false alarm.
Warranty and liability shall be limited to repeatable defects of the program functions. The range of functions and the radio ranges of the A1 Smart Home terminal devices depend on the distance, location, structural conditions, other interference factors (e.g. deadspots, frequency interferences) and other influences within the customer’s sphere.
In case of self-installation or subsequent modifications of installations carried out by A1 or components installed by the A1 engineer, any warranty or liability for the proper functioning of the A1 Smart Home system shall also be excluded.
The following limitations shall additionally apply to entrepreneurs: Any liability for loss of profits, loss of savings, lost data, indirect and consequential damage or loss and damage or loss arising from third-party claims shall be excluded, to the extent that mandatory law does not preclude this. Moreover, our liability to pay damages for each damaging event shall be limited – to an amount of 1,000 euros vis-à-vis any individual injured party, to 70,000 euros vis-à-vis all injured parties collectively. If the total amount of loss is higher, the claims for damages of the individual injured parties shall decrease on a pro rata basis.
8. SUSPENSION OF SERVICES
We may suspend our services and the services of other providers for You in full or in part, if any of the following applies to You:
a. Default of payments due to us – in spite of the fact that You were properly reminded and notified of the suspension, and that a period of grace of at least 2 weeks was granted.
b. Lack of legal capacity,
d. Lack of written direct debit mandate, which we have requested from You.
e. An out-of-court attempt at reorganisation was undertaken, insolvency proceedings with respect to your assets were opened or rejected for lack of assets to cover the costs, or your credit standing is no longer adequate for any other reasons, and We have sent You a reminder granting you a period of grace of two weeks without success.
f. Lack of domestic bank account.
g. There is justified suspicion that our services are abused – also by third parties.
h. Other essential contractual obligations were violated.
Upon request, We shall gladly inform You about the reason for the suspension.
9. TRANSFER OF CONTRACT
Transfer of contract by You:
Please note: You may only transfer the contract to third parties with our consent. You and the new customer shall be jointly and severally liable for the following claims that have arisen prior to the transfer:
– our fee claims,
– fee claims of other providers and
– claims for damages.
We shall also inform the new customer about any outstanding claims upon the latter’s request, using our transfer form sheets.
Transfer of contract by us:
You agree that our rights and obligations from this contract may be transferred, in full or in part, between Telekom Austria AG, Paybox Austria GmbH, A1 Bank AG and 3G Mobile Telecommunications GmbH.
The transfer shall have a debt discharging effect on the transferring company.
We shall inform You about any transfer in a suitable manner, e.g. in the invoice.
You must submit a written notice of termination.
Permanent contracts: You and We may properly terminate the contract at the end of your individual invoice period subject to a period of notice of one month. The invoice period is shown on your invoice. However, You may also call our service line to obtain the relevant information. The date of receipt of the notice of termination shall be decisive for commencement of the period of notice. If the deadline is not observed, termination shall take effect at the next possible date.
Without prejudice to any other grounds for suspension or termination, You and We may terminate contracts with a minimum contract term at the end of the minimum contract term at the earliest.
11. SEVERABILITY CLAUSE
If individual parts of these general terms and conditions of use are or become ineffective, the other provisions of these general terms and conditions of use shall remain effective.
12. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION AND DISPUTE SETTLEMENT
The place of performance and jurisdiction for any disputes arising hereunder shall be the first municipal district (Innere Stadt) of Vienna, Austria.
Consumers: The statutory legal venues shall apply to complaints against consumers within the meaning of the KSchG (consumer protection act) having their main residence in Austria or who are employed in Austria. The language of the contract, for any orders and for complaints shall be German.
Consumers shall have the option to file complaints with the online dispute settlement platform of the EU: http://ec.europa.eu/odr.
Irregardless of that, A1 will not participate in dispute settlement proceedings before an arbitration board with respect to complaints and objections in connection with A1 Smart Home, but rather is always interested to maintain a direct contact with the customer and to agree on a settlement of disputes directly with You.
13. APPLICABLE LAW
Unless opposed by mandatory law, our contracts shall be governed by Austrian law, excluding its conflict of law rules and the UN Convention on the International Sale of Goods.
14. ACCESS & UPDATES
If required, the platform provider shall reserve the right to directly install updates in the A1 Smart Home centre. The pertinent A1 Smart Home app can be updated via Google Play Store/App Store. The platform provider reserves the right to restrict the support of earlier app versions or to discontinue their availability.
A1 Telekom Austria AG
FN: 280571f (Vienna Commercial Court)
VAT ID no.: ATU62895905
DPR no.: 0962635
Tel: (+43 1) 331 61 – 0