WOLFGANG MAIR
GRAPHIC & WEB DESIGNER
1. Validity, conclusion of contract
1.1 Wolfgang Mair – graphic and web designer, hereinafter referred to as service provider, provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the service provider and the customer, even if no express reference is made to them.
1.2 The version valid at the time the contract is concluded is relevant. Deviations from these and other additional agreements with the customer are only effective if they are confirmed in writing by the service provider.
1.3 Any terms and conditions of the customer will not be accepted, even if they are known, unless otherwise expressly agreed in writing in individual cases. The service provider expressly contradicts the customer's general terms and conditions. There is no need for the service provider to object further to the customer’s general terms and conditions.
1.4 Changes to the General Terms and Conditions will be announced to the customer and will be deemed agreed if the customer does not object to the changed General Terms and Conditions in writing within 14 days; The customer is expressly informed of the importance of silence in the communication.
1.5 If individual provisions of these General Terms and Conditions are invalid, this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision must be replaced by an effective one that comes closest to the meaning and purpose.
1.6 The service provider's offers are subject to change and non-binding.
2. Social media channels
The service provider expressly points out to the customer before placing the order that the providers of “social media channels” (e.g. Facebook, hereinafter referred to as the provider) reserve the right in their terms of use to display advertisements and appearances from any source Reason to reject or remove. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which the service provider cannot calculate, that advertisements and appearances will be removed for no reason. In the event of a complaint from another user, the providers grant the opportunity to respond, but in this case the content will also be removed immediately. In this case, regaining the original, legal status may take some time. The service provider works on the basis of these providers' terms of use, over which it has no influence, and also uses these as the basis for an order from the customer. By placing the order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The service provider intends to carry out the customer's order to the best of its knowledge and belief and to comply with the guidelines of “social media channels”. However, due to the currently valid terms of use and the easy possibility for every user to allege legal violations and thus have the content removed, the service provider cannot guarantee that the commissioned campaign can be accessed at any time.
3. Protection of concepts and ideasIf the potential customer has already invited the service provider in advance to create a concept and the service provider accepts this invitation before the main contract is concluded, the following regulation applies:
3.1 Through the invitation and acceptance of the invitation by the service provider, the potential customer and the service provider enter into a contractual relationship (“pitching contract”). This contract is also based on the General Terms and Conditions.
3.2 The potential customer acknowledges that the service provider already provides cost-intensive advance work when developing the concept, even though it has not yet assumed any service obligations itself.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, as long as they reach the height of the work. The potential customer is not permitted to use and edit these parts without the consent of the service provider due to copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the heights of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are considered ideas within the meaning of this agreement, even if they do not reach the height of the work.
3.5 The potential customer undertakes to refrain from commercially exploiting or having exploited or using or having exploited the creative advertising ideas presented by the service provider as part of the concept outside of the corrective of a main contract to be concluded later.
3.6 If the potential customer is of the opinion that the service provider presented him with ideas that he had already thought of before the presentation, he must inform the service provider of this within 14 days of the day of the presentation by email, citing evidence, that allow a time allocation to be announced.
3.7 In the opposite case, the contracting parties assume that the service provider has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the service provider received merit in doing so.
3.8 The potential customer can release himself from his obligations under this point by paying appropriate compensation. The exemption only occurs after the service provider has received full payment of the compensation.
4. Scope of services, order processing and the customer's obligationto cooperate 4.1 The scope of the services to be provided results from the service description in the contract or any order confirmation from the service provider, as well as any briefing protocol (“offer documents”). Subsequent changes to the service content require written confirmation from the service provider. Within the framework specified by the customer, the service provider has freedom of design when fulfilling the order.
4.2 All services provided by the service provider (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by the customer within three working days of receipt by the customer. If they are not released on time, they are deemed to have been approved by the customer.
4.3 The customer will provide the service provider with all information and documents required to provide the service in a timely and complete manner. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expense resulting from work having to be repeated or delayed by the service provider as a result of incorrect, incomplete or subsequently changed information.
4.4 The customer is further obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademarks, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of rights They are third parties and can therefore be used for the intended purpose. In the event of slight negligence or after fulfilling its duty to warn - at least internally with the customer - the service provider is not liable for any violation of such third party rights through documents provided. If a claim is made against the service provider by a third party due to such an infringement, the customer shall indemnify and hold the service provider harmless; He must compensate her for all disadvantages that she incurs as a result of making use of third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the service provider in defending against any claims from third parties. The customer provides the service provider with all documents for this purpose without being requested to do so.
5. Third-party services / commissioning third parties
5.1 The service provider is entitled, at its own discretion, to carry out the service itself, to use expert third parties as vicarious agents when providing contractual services and/or to substitute such services (“third-party services”).
5.2 Third parties are commissioned as part of an external service either in their own name or in the name of the customer. The service provider will carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 If the service provider orders necessary or agreed external services, the respective contractors are not vicarious agents of the service provider.
5.4 The customer must assume obligations towards third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the contract for good cause.
6. Deadlines
6.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointment agreements must be recorded in writing or confirmed in writing by the service provider.
6.2 If the service provider's delivery/service is delayed for reasons for which the service provider is not responsible, such as force majeure events and other unforeseeable events that cannot be prevented by reasonable means, the service obligations are suspended for the duration and to the extent of the obstacle and are extended Deadlines accordingly. If such delays last more than two months, the customer and the service provider are entitled to withdraw from the contract.
6.3 If the service provider is in default, the customer can only withdraw from the contract after giving the service provider a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-fulfillment or delay are excluded, unless evidence of intent or gross negligence is provided.
7. Early termination
7.1 The service provider is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if:
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days;
b) the customer continues to violate essential obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns about the creditworthiness of the customer and the customer neither makes advance payments at the agency's request nor provides suitable security before the agency provides the service;
7.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists in particular if the agency continues to violate essential provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
8. Fees
8.1 Unless otherwise agreed, the agency's claim to a fee for each individual service arises as soon as it has been provided. The agency is entitled to request advance payments to cover its expenses. From an order volume with an (annual) budget of €800 or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to request payments on account.
8.2 The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee at the usual market rate for the services provided and the transfer of copyright and trademark rights of use.
8.3 All services provided by the agency that are not expressly covered by the agreed fee will be paid for separately. All cash expenses incurred by the agency must be reimbursed by the customer.
8.4 Cost estimates from the agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the agency by more than 15%, the agency will inform the customer of the higher costs. The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announce cheaper alternatives. If the costs are overrun by up to 15%, a separate notification is not necessary. This cost estimate overrun is deemed to have been approved by the client from the outset.
8.5 For all work by the agency that is not carried out by the customer for whatever reason, the agency is entitled to the agreed fee. The crediting provision of Section 1168 ABGB is excluded. By paying the fee, the customer does not acquire any rights of use to work that has already been carried out; Concepts, drafts and other documents that have not been implemented must be returned to the agency immediately.
9. Payment, retention of title9.1 The fee is due for payment immediately upon receipt of the invoice and without deductions, unless special payment conditions are agreed in writing in individual cases. This also applies to the recharging of all cash outlays and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all additional liabilities.
9.2 If the customer defaults on payment, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse the agency for any dunning and collection costs incurred, to the extent that they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at the usual market rate of currently at least €20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 If the customer defaults on payment, the agency can immediately declare all services and partial services provided within the framework of other contracts concluded with the customer due.
9.4 Furthermore, the agency is not obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration remains unaffected.
9.5 If payment was agreed in installments, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or additional claims are not paid on time (loss of deadline).
9.6 The customer is not entitled to set off his own claims against the agency's claims, unless the customer's claim has been recognized in writing by the agency or has been determined by a court.
10. Property rights and copyright10.1 All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as the individual work pieces and original designs, remain in the property Property of the agency and can be requested back by the agency at any time - especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use it for the agreed purpose. Unless otherwise agreed, the customer may only use the agency's services in Austria. The acquisition of rights of use and exploitation of the agency's services always requires full payment of the fees charged by the agency. If the customer already uses the agency's services before this point in time, this use is based on a rental agreement that can be revoked at any time.
10.2 Changes or editing of the agency's services, in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and - if the services are protected by copyright - of the author.
10.3 The agency's consent is required for the use of the agency's services that go beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright. The agency and the author are entitled to separate appropriate remuneration for this.
10.4 For the use of the agency's services or advertising materials for which the agency has developed conceptual or design templates, the agency's consent is also required after the expiry of the agency contract, regardless of whether this service is protected by copyright or not.
10.5 For uses in accordance with paragraph 4, the agency is entitled to the full agency fee agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, there is no longer any agency fee to be paid.
10.6 The customer is liable to the agency for any unlawful use in the amount of twice the fee appropriate for this use.
11. Labeling
11.1 The agency is entitled to refer to the agency and, if necessary, to the author on all advertising materials and in all advertising measures, without the customer being entitled to any payment for this.
11.2 Subject to the customer's written revocation, which is possible at any time, the agency is entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).
12. Warranty
12.1 The customer must report any defects immediately, in any case within eight days of delivery/service by the agency, and hidden defects within eight days of recognizing them, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and damage claims as well as the right to challenge errors due to defects is excluded.
12.2 In the event of justified and timely notification of defects, the customer has the right to have the delivery/service improved or replaced by the agency. The agency will correct the defects within a reasonable period of time, whereby the customer enables the agency to take all measures necessary to investigate and correct the defects. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of an improvement, the client is responsible for transmitting the defective (physical) item at his own expense.
12.3 It is also the responsibility of the client to check the service for legal admissibility, in particular competition, trademark, copyright and administrative law. The agency is only obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfilling any obligation to warn the customer, the agency is not liable for the legal admissibility of content if it was specified or approved by the customer.
12.4 The warranty period is six months from delivery/service.
The right to recourse against the agency in accordance with Section 933b Paragraph 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of Section 924 ABGB is excluded.
13. Liability and product liability
13.1 In cases of slight negligence, liability of the agency and its employees, contractors or other vicarious agents (“people”) for property damage or financial damage to the customer is excluded, regardless of whether the damage is direct or indirect or loss of profit or consequential damage due to defects, damage due to delay, impossibility, positive breach of contract, negligence when concluding the contract, due to defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that the agency's liability is excluded or limited, this also applies to the personal liability of its "people".
13.2 Any liability of the agency for claims that are raised against the customer due to the service provided by the agency (e.g. advertising measure) is expressly excluded if the agency has fulfilled its obligation to provide information or if such a duty was not apparent to it, in which case slight negligence doesn't do any harm. In particular, the agency is not liable for legal costs, the customer's own legal fees or costs of publication of judgments as well as for any claims for damages or other claims from third parties; The customer must indemnify and hold the agency harmless in this regard.
13.3 The customer's claims for damages expire six months after becoming aware of the damage; in any case after three years from the agency's infringing act. Claims for damages are limited to the net order value.
14. Data protection (optical highlighting in accordance with judicature)
The customer agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, email address Address, bank details, credit card details, VAT number) for the purpose of fulfilling the contract and supporting the customer as well as for our own advertising purposes, for example to send offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the customer existing or previous business relationships (reference information) can be determined, stored and processed automatically. The client agrees that electronic mail will be sent to him for advertising purposes until revoked.
This consent can be revoked at any time in writing by email, fax or letter to the contact details listed at the top of the General Terms and Conditions.
15. Applicable law
The contract and all mutual rights and obligations as well as claims between the service provider and the customer derived from it are subject to Austrian substantive law, excluding its reference norms and excluding the UN Convention on Contracts for the International Sale of Goods.
16. Place of performance and place of jurisdiction
16.1 The place of performance is the registered office of the service provider. When shipping, the risk passes to the customer as soon as the service provider has handed over the goods to the transport company chosen by them.
16.2 The place of jurisdiction for all legal disputes arising between the service provider and the customer in connection with this contractual relationship is the court with material jurisdiction for the service provider's registered office. Regardless of this, the service provider is entitled to sue the customer at its general place of jurisdiction.
16.3 If in this contract references to natural persons are only given in the male form, they refer to women and men in the same way. When applying the term to specific natural persons, the gender-specific form must be used.