General Terms and Conditions of Factor Innsbruck GmbH
Validity, conclusion of contract
- FACTOR Innsbruck GmbH (hereinafter referred to as the "Agency") provides its services exclusively on the basis of the following General Terms and Conditions. These shall also apply to all future business relations, even if no express reference is made to them.
- Deviations from these as well as other supplementary agreements with the customer shall only be effective if they are confirmed in writing by the Agency.
- Any terms and conditions of business of the Client shall not be accepted unless expressly agreed otherwise in writing in individual cases. A special objection to the customer's general terms and conditions by the Agency shall not be required.
- Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid one that comes closest to its meaning and purpose.
- The Agency's offers are subject to change and non-binding.
Scope of services, order processing and the Client's duty to cooperate
- The scope of the services to be rendered shall be determined by the service description in the agency contract or any order confirmation by the Agency, as well as any briefing protocol. Subsequent changes to the content of the service shall require written confirmation by the Agency. Within the framework specified by the customer, the Agency shall have freedom of design in the fulfilment of the order.
- All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, colour prints and electronic files) shall be checked by the Client and approved within three working days of receipt by the Client. If they are not released in time, they shall be deemed approved by the customer.
- The Client shall make available to the Agency, in a timely manner and in full, all information and documents required for the provision of the service. He shall inform the Agency of all circumstances that are of importance for the execution of the order, even if these only become known during the execution of the order. The customer shall bear the costs incurred by the fact that work has to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
- Furthermore, the customer shall be obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties. The agency shall not be liable for any infringement of such rights. If a claim is made against the Agency for such an infringement of rights, the Customer shall indemnify and hold the Agency harmless; the Customer shall compensate the Agency for all disadvantages incurred by the Agency as a result of a claim made against it by a third party
External services / commissioning of third parties
- The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents in the performance of contractual services and/or to substitute such services ("external service").
- The commissioning of third parties within the framework of an external service shall take place either in the Agency's own name or in the name of the Customer, but in any case for the account of the Customer. The Agency shall carefully select this third party and ensure that it has the necessary professional qualifications.
- Insofar as the Agency commissions necessary or agreed third-party services, the respective contractors shall not be vicarious agents of the Agency.
- Unless expressly agreed as binding, stated delivery or service deadlines shall only be considered approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.
- If the Agency's delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the service obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last more than two months, the Client and the Agency shall be entitled to withdraw from the contract.
- If the Agency is in default, the Client may only withdraw from the contract after having granted the Agency a grace period of at least 14 days in writing, which shall have expired fruitlessly. Claims for damages by the client due to non-fulfilment or delay shall be excluded, except in the case of proof of intent or gross negligence.
- The Agency shall be entitled to dissolve the contract with immediate effect for important reasons. An important reason shall be deemed to exist 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 being set;
b) the customer continues to breach material obligations arising from this contract, such as payment of a due amount or duties to cooperate, despite a written warning with a grace period of 14 days being set.
c) there are justified doubts about the Customer's creditworthiness and the Customer does not make advance payments at the Agency's request or does not provide suitable security before the Agency's performance;
d) bankruptcy or composition proceedings are instituted against the Customer's assets or an application to institute such proceedings is rejected for lack of assets to cover costs or if the Customer ceases to make payments.
- The customer is entitled to dissolve the contract for good cause without granting a grace period. An important reason shall be deemed to exist in particular if the Agency continues to violate essential provisions of this contract despite a written warning with a grace period of 14 days to remedy the violation of the contract.
- The Agency shall be entitled to dissolve the contract with immediate effect for important reasons. An important reason shall be deemed to exist in particular if
- Unless otherwise agreed, the Agency's fee claim shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 5,000 or more, or those extending over a longer period, the Agency shall be entitled to issue interim or advance invoices or to call for payments on account.
- The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, the Agency shall be entitled to a fee in the customary market amount for the services rendered and the transfer of the rights of use under copyright and trademark law.
- All services rendered by the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
- The Agency's cost estimates shall not be binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the Agency by more than 15%, the Agency shall draw the Client's attention to the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time discloses more cost-effective alternatives. In the case of a cost overrun of up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the Client from the outset.
- The Agency shall be entitled to the agreed remuneration for all work carried out by the Agency which, for whatever reason, is not carried out by the Client. The offsetting provision of § 1168 AGBG shall be excluded. Upon payment of the fee, the Client shall not acquire any rights of use to work already performed; rather, concepts, drafts and other documents not executed shall be returned to the Agency without delay.
Payment, retention of title
- The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special terms of payment have been agreed in writing in individual cases. This shall also apply to the charging of all cash expenses and other expenditures. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration including all ancillary liabilities.
- In the event of default in payment on the part of the customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the Agency for the reminder and collection costs incurred, insofar as they are necessary for appropriate legal action. This shall in any case include the costs of two reminders in the amount customary in the market as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims shall remain unaffected.
- In the event of default in payment on the part of the Client, the Agency shall be entitled to demand immediate payment of all services and partial services rendered within the framework of other contracts concluded with the Client. Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been settled. If payment in instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (forward loss).
- The customer shall not be entitled to set off his own claims against claims of the Agency unless the customer's claim has been recognised by the Agency in writing or has been established by a court of law.
Ownership and copyright
- All services rendered by the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time - in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, the Client may use the Agency's services exclusively in Austria. The acquisition of rights of use and exploitation of the Agency's services shall in any case require full payment of the fees invoiced by the Agency.
- Changes or adaptations of the Agency's services, such as in particular their further development by the Client or by third parties working for the Client, shall only be permitted with the express consent of the Agency and - insofar as the services are protected by copyright - of the author.
- The Agency's consent shall be required for the use of the Agency's services that goes beyond the originally agreed purpose and scope of use, irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to a separate appropriate remuneration for this.
- The Agency's consent shall also be required for the use of the Agency's services or advertising material for which the Agency has developed conceptual or design templates, after expiry of the Agency contract, irrespective of whether this service is protected by copyright or not.
- For uses according to para. 4, the agency shall be entitled to the full agency remuneration agreed in the expired contract in the 1st year after the end of the contract. In the 2nd or 3rd year after expiry of the contract only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration shall be payable.
- The client shall be liable to the agency for any unlawful use in the double amount of the fee appropriate for this use.
- The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising media and in all advertising measures, without the Customer being entitled to any remuneration for this.
- Subject to written revocation by the customer, which shall be possible at any time, the agency shall be entitled to refer to the existing business relationship with the customer by name and company logo (reference) on its own advertising media and in particular on its Internet website.
- The Customer shall report any defects immediately in writing, in any case within eight days of delivery/service by the Agency, hidden defects within eight days of their discovery, describing the defect; otherwise the service shall be deemed to have been approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
- In the event of justified and timely notification of defects, the customer shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the customer shall enable the Agency to take all measures necessary to examine and remedy the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for the Agency. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be incumbent on the Client to carry out the transfer of the defective (physical) item at his own expense.
- It shall be incumbent on the Client to check the performance for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency shall not be liable for the correctness of content if this has been specified or approved by the Client.
- The warranty period shall be six months from delivery/service. The right of recourse against the Agency pursuant to Section 933b (1) ABGB shall expire one year after delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption regulation of § 924 AGBG is excluded.
Liability and product liability
- In cases of slight negligence, liability on the part of the Agency for material or financial damage to the Customer shall be excluded, irrespective of whether this relates to direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence shall be proven by the injured party.
- Any liability of the Agency for claims made against the customer on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has fulfilled its duty to inform or if such a duty was not recognisable to it, whereby slight negligence shall not be prejudicial. In particular, the Agency shall not be liable for legal costs, the Customer's own lawyer's fees or the costs of publishing judgements or for any claims for damages or other claims by third parties; the Customer shall indemnify and hold the Agency harmless in this respect.
- Claims for damages on the part of the customer shall expire six months after knowledge of the damage; in any case, however, after three years after the Agency's act of infringement. Claims for damages shall be limited to the net order value.
The Client expressly agrees that the Agency may automatically determine, store and process the data disclosed by the Client (name, address, e-mail, credit card data, data for account transfer) for the purpose of fulfilling the contract and servicing the Client as well as for its own advertising purposes. The client agrees that electronic mail may be sent to him for advertising purposes until revoked.
The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the Client shall be governed by Austrian substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.Place of Performance and Jurisdiction
Place of performance and jurisdiction
- The place of performance shall be the registered office of the Agency. In the case of dispatch, the risk shall pass to the customer as soon as the Agency has handed over the goods to the carrier selected by it.
- The court of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the Agency's registered office. Notwithstanding the above, the Agency shall be entitled to sue the Customer at his general place of jurisdiction.