1. Validity, conclusion of contract
1.1 The company Gregor Wimmer advertising agency (hereinafter referred to as "agency") provides its services exclusively on the basis of the following general terms and conditions. These also apply to all future business relationships, even if no express reference is made to them.
1.2 Deviations from these and other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.
1.3 Any terms and conditions of the customer will not be accepted unless otherwise expressly agreed in writing in individual cases. The agency does not need to specifically object to the customer's terms and conditions.
1.4 Should individual provisions of these general terms and conditions be ineffective, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to its purpose.
1.5 The offers of the agency are non-binding.
2. Scope of services, order processing and customer's obligations to cooperate
2.1 The scope of the services to be provided results from the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol. Subsequent changes to the service content require written confirmation by the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
2.2 All services of the agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) are to be checked by the customer and released within three working days of receipt by the customer. If they are not released in time, they are deemed to have been approved by the customer.
2.3 The Client will promptly and fully provide the Agency with all information and documents necessary for the provision of the Service. He will inform you of all circumstances that are important for the execution of the order, even if they become known only during the execution of the order. The Customer shall bear the expenses arising from the fact that work due to its incorrect, incomplete or subsequently changed information must be repeated by the Agency or delayed.
2.4 The customer is also obliged to check the documents (photos, logos, etc.) made available for the execution of the order for any copyrights, trademark rights or other rights of third parties. The agency is not liable for any violation of such rights. If claims are made against the agency for such an infringement, the customer shall hold the agency harmless and harmless; he has to reimburse her for all disadvantages that she incurs as a result of third-party claims.
3. External services / commissioning third parties
3.1 The agency is entitled, at its own discretion, to carry out the service itself, to use competent third parties as vicarious agents for the provision of contractual services and / or to substitute such services ("external service").
3.2 The commissioning of third parties in the context of an external service takes place either in the customer's own name or in the name of the customer, but in any case for the account of the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
3.3 Insofar as the agency commissions necessary or agreed external services, the respective contractors are not agents of the agency.
4.1 Unless expressly agreed as binding, delivery or service deadlines are only approximate and non-binding. Binding appointments must be recorded in writing or confirmed in writing by the agency.
4.2 If the delivery / service of the agency is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be prevented with reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and are extended Deadlines accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
4.3 If the agency is in default, the customer can only withdraw from the contract after he has given the agency a grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of evidence of intent or gross negligence.
5. Early termination
5.1 The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
a) the execution of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite the granting of a grace period of 14 days;
b) the customer continues to violate essential obligations from this contract, such as payment of a due amount 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 client, and the latter does not make any advance payments at the request of the agency, nor does it provide adequate security before the Agency's performance;
d) bankruptcy or settlement proceedings are opened against the customer's assets or an application to open such proceedings is rejected due to a lack of cost-covering assets or if the customer stops making payments.
5.2 The customer is entitled to dissolve 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 grace period of 30 days to remedy the breach of contract.
6.1 Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been performed. The agency is entitled to demand advances of 25%, 50%, 70% or 100% to cover its expenses. From an order volume with an (annual) budget of EUR 500, - or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to call up payments on account.
6.2 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 in the amount customary in the market for the services provided and the transfer of the rights of use under copyright and trademark law.
6.3 All services of the agency, which are not expressly compensated by the agreed fee, will be paid separately. All expenses incurred by the agency are to be reimbursed by the customer.
6.4 quotes from the agency are not binding. If it is anticipated that the actual cost will exceed the Agency's written estimate by more than 15%, the Agency will advise the customer of the higher cost. 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 announces cheaper alternatives. If it is a cost overrun up to 15%, a separate communication is not required. This cost estimate overrun is considered by the client from the outset as approved.
6.5 The agency is entitled to the agreed fee for all work by the agency that is not carried out by the customer for whatever reason. The crediting provision of § 1168 AGBG is excluded. By paying the fee, the customer does not acquire any rights of use for work that has already been performed; Concepts, drafts and other documents that have not been implemented are to be returned to the agency immediately.
7. Payment, retention of title
7.1 The fee is due for payment immediately (payment term 10 days from the invoice date) upon receipt of the invoice and without any deductions, unless special payment terms are agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until full payment of the fee including all ancillary liabilities.
7.2 In the event of default in payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the reminder and collection charges incurred (45,00 euros from the 1st reminder), insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at normal market rates and a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
7.3 In the event that the customer is in default of payment, the agency can immediately make all services and partial services due in the context of other contracts concluded with the customer. Furthermore, the agency is not obliged to provide further services until the outstanding amount has been settled. If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or additional claims (loss of deadline).
7.4 The customer is not entitled to set off its own claims against claims of the agency, unless the customer's claim has been recognized in writing by the agency or judicially determined.
8. Property rights and copyright
8.1 All services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and draft originals, remain the property of the agency and can be reclaimed by the agency at any time - in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the agency's services in Austria. The acquisition of usage and exploitation rights to the agency's services always requires full payment of the fees charged by the agency.
8.2 Changes or processing 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 - insofar as the services are protected by copyright - the author.
8.3 For the use of services of the agency that go beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright - the consent of the agency is required. The agency and the author are entitled to separate appropriate remuneration for this.
8.4 For the use of the agency's services or advertising material for which the agency has developed conceptual or creative templates, the agency's consent is also required after the agency contract has expired, regardless of whether this service is protected by copyright or not.
8.5 In the first year after the end of the contract, the agency is entitled to the full agency fee agreed in the expired contract for uses according to Paragraph 4. In the 1nd or 2rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the 3th year after the end of the contract, no agency fees are payable.
8.6 The customer is liable to the Agency for any unlawful use in duplicate of the appropriate fee for this use.
9.1 The agency is entitled to refer to the agency and, if necessary, to the author on all advertising material and in all advertising measures, without the customer being entitled to any remuneration.
9.2 Subject to the customer's written revocation, which is possible at any time, the agency is entitled to refer to the existing 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).
10.1 The customer shall report any defects immediately, in any event within eight days after delivery / performance by the agency, hidden defects within eight days after detection thereof, in writing under description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects are excluded.
10.2 In the case of justified and timely notice of defects, the customer has the right to improve or exchange the delivery / service by the agency. The Agency will remedy the deficiencies in a timely manner, allowing the Client to provide the Agency with all necessary measures to investigate and correct the defects. The Agency is entitled to refuse to improve performance if it is impossible or disproportionately expensive for the Agency. In this case, the customer is entitled to the legal conversion or reduction rights. In the case of improvement, it is up to the client to carry out the transmission of the defective (physical) thing at his expense.
10.3 It is the responsibility of the client to check the service for its legal, in particular competition, trademark, copyright and administrative permissibility. The agency is not liable for the correctness of content if it has been specified or approved by the customer.
10.4 The warranty period is six months from delivery / service. The right to recourse against the agency in accordance with Section 933b (1) ABGB expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of § 924 AGBG is excluded.
11. Liability and Product Liability
11.1 In cases of slight negligence, the agency is not liable for property damage or financial damage to the customer, regardless of whether it is direct or indirect damage, loss of profit or consequential damage caused by defects, damage due to delay, impossibility, positive breach of claim, culpability when concluding the contract, due to defective or incomplete performance. The injured party has to prove the existence of gross negligence.
11.2 Any liability of the Agency for claims that are made against the customer due to the service provided by the agency (eg advertising) is expressly excluded if the agency has fulfilled its obligation to inform or was not recognizable for them, whereby slight negligence does not hurt. In particular, the agency is not liable for litigation costs, own legal fees of the customer or costs of judgments as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the agency harmless.
11.3 Claims for damages by the customer expire six months after knowledge of the damage; at least after three years from the agency's act of infringement. Claims for damages are limited in amount to the net order value.
The customer expressly agrees that the agency will automatically determine, store and process the data provided by the customer (name, address, email, credit card data, data for account transfer) for the purpose of fulfilling the contract and supporting the customer as well as for its own advertising purposes . The client consents to electronic mail being sent to him for advertising purposes until further notice.
13. Applicable law
The contract and all mutual rights and obligations derived from it, as well as claims between the agency and the customer, are subject to Austrian substantive law to the exclusion of the UN sales law.
14. Fulfillment and jurisdiction
14.1 Place of Performance is the registered office of the agency. Upon shipment, the risk passes to the customer as soon as the agency has handed over the goods to their chosen carrier.
14.2 The place of jurisdiction for all disputes arising between the agency and the customer in connection with this contractual relationship is the court of competent jurisdiction for the seat of the agency. Regardless, the agency is entitled to sue the customer at his general place of jurisdiction.
15. Final Provisions
15.1. Subsidiary agreements, changes and additions must be made in writing to be effective.
15.2. At the end or interruption of the service provision, the contractor is entitled to switch off the homepage made available to the client or to use the domain made available for other purposes.
15.3. The contractor reserves the right to change these terms and conditions. The invalidity of individual provisions of these terms and conditions does not affect the validity of the remaining provisions. The invalid provision is replaced by a valid provision that comes closest to the meaning and purpose of the former, both legally and economically.
15.4. Austrian law applies exclusively. The place of performance for both parties is the contractor's headquarters. The place of jurisdiction for both parties is 5020 Salzburg.
GENERAL TERMS AND CONDITIONS FOR THE CREATION AND OPERATION OF A HOMEPAGE
1.1. The client has a contract with the Gregor Wimmer advertising agency ("contractor") for the creation and operation of a website, so the following provisions apply to the creation and operation of this website of the client.
1.2. In addition to these “General Terms and Conditions for the Creation and Operation of a Homepage”, the “General Terms and Conditions” of the contractor also apply. Terms and conditions of the client do not apply.
2. Service provision
2.1. The client receives a form from the contractor for creating his homepage regarding the possible contents of the homepage. If he does not receive this, it can under firstname.lastname@example.org be requested. As soon as the contractor receives this form and all other documents and data necessary for the creation and operation of the homepage, the creation of the homepage can begin. The client is responsible for making them available on time. The term and thus the payment of the monthly monthly payments start with the signature.
3. Design of the homepage
3.1. The contractor creates a homepage for the client in accordance with the service overview, which is handed over when the contract is concluded and is also available on the Internet at www.herzbluat.at can be accessed.
3.2. After completion of the homepage, the contractor sends the client a link via which the client can view the homepage that has not yet been activated. The client must check the content of the website for correctness and compliance with legal obligations (in particular imprint, publication obligations or professional ethics) and notify the contractor in writing of any correction requests or necessary changes within 5 working days. Changes to the content, which are not deficiencies, can only be requested by the client once before activation. If there is a change request, the contractor will implement this within a reasonable period, if possible, and send the client a link to review the changed homepage.
3.3. If the client has released the homepage, the contractor activates the homepage. The homepage is considered approved even without an express declaration of approval if the client has not requested a change within 5 working days of sending the link.
3.4. If the client does not have his own domain, the contractor offers to provide the client with a domain. The contractor does not guarantee that certain domains requested by the client can be assigned and / or that the assigned domains are free of third party rights or that they will be in place in the long term. The client checks himself whether the desired domain encroaches on the rights of third parties. The domain is registered on the contractor. A transfer of the domain to the client is only possible with the express consent of the contractor. In particular, the contractor can refuse the release and / or transfer of the domain as long as the client has not fully fulfilled obligations under the contract or as long as the contract is upheld. The selection of a suitable domain is the responsibility of the client.
4. Operation and maintenance of the homepage
4.1. For the duration of the contract, as well as the further operation after the term, the contractor keeps the homepage available on its servers for retrieval (hosting) and ensures the operation of the homepage in accordance with the following agreements.
4.2. After activation, the client can make changes to the content of his homepage himself at any time using the CMS. Any further change requests can be commissioned for a fee.
5. Services of the client
5.1. The client provides the contractor with the content required to create the website and the content required for any desired change, in particular photo files, videos or texts in a format agreed in advance. The contractor is not obliged to check the content made available by the client, in particular not with regard to whether it is suitable to achieve the purpose pursued with the creation of the homepage, or whether the content interferes with the rights of third parties. However, the contractor reserves the right to reject obviously illegal content.
5.2. The client is obliged to mark content on his website as his own content, stating the information required by law (imprint). The client exempts the contractor from all claims based on a breach of the aforementioned obligations and indemnifies and holds harmless the contractor in this regard.
5.3. If the client has a domain under which the homepage is to be activated, he has to submit all declarations that are necessary to be able to use the domain for the homepage.
5.4. As long as the client does not meet his obligations to cooperate (see points 2.1., 3.2. And 3.4.), The contractor can refuse to create the homepage. If the client does not provide any content, the contractor reserves the right to put the homepage on hold for the time being, but not to pay the 36 monthly fees.
6. use rights
6.1. The contractor grants the client a simple right for the duration of the contract to use the website created by the contractor for the client as intended.
6.2. All rights to the content provided by the client remain with the client.
7.1. The creation and online placement of the homepage is settled with the payment of the 36th monthly installments.
7.2. If the client is in arrears with payments of the total of 36 monthly installments, the contractor is entitled to switch off the homepage until full payment has been made or to block access to it.
8. Warranty and liability
8.1. The contractor guarantees that the homepage created is in accordance with the contract.
8.2. The contractor programs the homepage so that it can be read and indexed by search engines. In particular, however, the contractor does not guarantee a certain ranking of the homepage, since the ranking depends on many factors that the contractor cannot influence.
8.3. The contractor guarantees an availability of their servers of 99% per year. This does not apply to times when the server cannot be reached due to technical or other problems that are beyond the control of the contractor (force majeure, fault of third parties, etc.). The contractor can restrict access to the services if the security of the network operation, the maintenance of the network integrity, in particular the avoidance of serious disruptions to the network, the software or stored data so require.
8.4. The contractor is only liable for damage caused by gross negligence or intent. Liability for lost profits or other consequential damage is expressly excluded. The amount of liability is limited to the remuneration paid by the client. Claims for damages against the contractor are to be asserted in court for any other loss within one year of knowledge of the damage and the party causing the damage.
9. Third Party Rights
9.1. The contractor is responsible for ensuring that the use and operation of the homepage created by him does not infringe any rights of third parties, unless this is due to content provided by the client or breach of obligations regarding information on the homepage (e.g. imprint ) he follows. If the contractor uses basic technology or software developed by third parties to create the homepage, the contractor guarantees that it has the necessary rights and that it is entitled to grant the rights mentioned in point 6.
9.2. The contractor assumes no liability for content made available by the client or information on the homepage that is based on information provided by the client (e.g. imprint). The contractor is also not liable for the violation of rights caused by the domain used by the client. If claims are made against the contractor due to the infringement of rights through content or information on the website or the lack of information or a domain from third parties, the client exempts the contractor from such claims at the first request and indemnifies and indemnifies the contractor . In such cases, the contractor is entitled to switch off the client's homepage or to block access at his own discretion until the matter has been clarified.