General Terms and Conditions
1.1. The General Terms and Conditions of HMC – Haas Marketing & Communications (Hereafter referred to as ‘Agency’ in short) form an integral part of all provision of services of the Agency and services are rendered exclusively on the basis of theses General Terms and Conditions. These are also valid for all future business relationships, even when they are not specifically referred to.
1.2. All contracts and any other agreements only become legally binding after confirmation and authorised signature by the customer and by the Agency and are only mutually binding within the given scope of the written contracted agreement.
1.3. Variations, such as any complementary agreements agreed with the customer, only become effective after written confirmation from the Agency.
1.4. Any possible other conditions from the customer are hereby deemed to be invalid.
1.5. Offers from the Agency are non-binding and without engagement.
2. SCOPE OF SERVICES
2.1. The extent of the services to be rendered is derived from the description of services in the Agency contract or from a confirmation of order from the Agency where applicable. Supplementary agreements and alterations of the extent of the services must in any case be in written form.
2.2. The customer is obliged to submit to the Agency all information and documentation necessary for the provision of the services.
2.3. The customer is furthermore obliged to verify any rights of third parties concerning the data provided for the execution of the contract (photos, logos, etc.) as regards copyright, trademark or any other law. The Agency accepts no responsibility for violation of such laws. Should the Agency be claimed against for such a law violation, the customer will indemnify and hold harmless the Agency; all detriments arising from the claim of a third party are to be made good.
2.4. In order to fulfil the agreed contract or parts thereof and at its own discretion, the Agency has the right to render the services itself or to make use of professional third parties as subcontractors or to substitute similar services. Insofar as the Agency commissions necessary or agreed external services, the relevant suppliers are not agents of the Agency.
3. PROPERTY RIGHTS AND COPYRIGHT LAW
3.1. The customer is obliged to ensure that any quotations, presentations, concepts, layouts, designs, etc. prepared in the course of the fulfilment of the contract by the Agency, its staff as well as subcontractors or any other companies participating in the contract are used solely for contract purposes. Everything produced, including single items from the above list of services, remain the property of the Agency, as do the individual work pieces and drafts and the Agency may at any time demand their return – in particular on completion or non-fulfilment of the contract.
3.2. The customer hereby explicitly acknowledges the intellectual property rights concerning the Agency’s services. The Agency retains the copyright on all its services, hereby irrevocably acknowledged by the customer.
3.3. The Agency has the right to refer to the Agency as originator on all advertising material and for all advertising actions and in any case to the copyright, without the customer having a right to payment. The Agency has further the right to refer to the existing business relationship on its own advertising contracts and in particular on its Internet website, using the company’s name and logo. This is subject to written revocation by the customer, possible at any time.
3.4. In paying the fees, the customer secures the right of use for the designated purpose. The acquisition of right of use and right of exploitation of the provision of services from the Agency requires in any case the complete payment of the relevant invoice from the Agency.
3.5. The exploitation of the provision of services of the Agency that goes beyond the originally agreed purpose and scope of use is dependent upon whether the usage is protected by copyright laws and the requisite agreement of the Agency. Furthermore, an appropriate extra payment is due to the Agency.
3.6. The customer is liable for double the appropriate amount of this usage for each unlawful exploitation.
4.1. The Agency is entitled to fees for each individual provision of services as soon as these have been rendered; should the fulfilment of the contract be impeded by the customer after signature, the Agency has nevertheless the right to the agreed fee. The Agency also maintains the right to invoice an advance payment of up to 50% of the agreed fee for the provision of services.
4.2. Should the contract not be completed by the Agency due to serious reasons, the Agency may only claim the part of the fee corresponding to the provision of services carried out, in particular when the provision of services is used or usable.
4.3. The Agency may make the completion of the provision of services dependant on the complete payment of the fees. Complaints do not justify the withholding of payments due to the Agency.
4.4. All provision of services by the Agency not explicitly covered by the agreed fee are to be paid separately. The customer must reimburse the Agency for all cash expenditure which it incurs.
4.5. The Agency has the right to the agreed fees for all work that for whatever reason is not implemented by the customer. The payment of fees does in no way entitle the customer to the rights of use to already completed work; unused concepts, drafts and other data are on the contrary to be returned to the Agency without delay.
4.6. The customer does not have the right to set off counter claims from the Agency with his own claims. Any right of retention on the part of the customer is excluded.
4.7. Insofar as the Agency commissions necessary or agreed external services for the customer, it has the right to a handling fee of at least 15% of the allocated volume.
5.1. Specified delivery or provision of services deadlines are only approximate and non-binding, insofar as they are not explicitly agreed to be binding. Obligatory deadline agreements are recorded in writing or are to be confirmed by the Agency.
5.2. Failure to keep to deadlines entitles the customer to withdraw from the contract only after he has stipulated an extended deadline of at least 14 days in writing and that this period of grace has elapsed fruitlessly. Compensation claims from the customer for non-fulfilment of the contract or delays are excluded, except when willful intent or gross negligence can be proved.
5.3. Unavoidable or unforeseeable events – in particular delays on the part of the Agency’s contractors – release the Agency in any case from keeping to the agreed deadlines. The same applies should the customer incur delays with his compulsory obligations for the fulfilment of the contract (provision of data, information, etc.). In this case, the agreed deadline is put back by at least the extent of the delay.
6.1. The customer must make all claims in writing, with justifications and without delay, and in any case within 7 days following the provision of services by the Agency and within 7 days of identifying hidden vices. The provision of services is otherwise deemed to be accepted. Warranty and compensation claims as well as the right to disputes over errors on the basis of deficiencies are in this case excluded.
6.2. In the event of justified and timely complaints, the customer has the right to improvements or replacements to the provision of services by the Agency. The Agency will correct the deficiencies in a suitable time frame whereby the customer will place at the Agency’s disposition all measures necessary for the investigation and correction of the deficiency. The Agency has the right to refuse any corrections to the provision of services if this proves to be impossible or if it involves a disproportionally high expenditure for the Agency. If this is the case, the customer has the Transformation Law or the price reduction laws at his disposal. Should corrections be carried out, it is incumbent on the customer to advise about the defective items at his own cost, whereby the existence of errors at the date of handover, the date when the errors were ascertained and the timeliness of the complaint from the customer are to be established.
6.3. The warranty period lasts for six months after the provision of services. The right to recourse against the Agency lapses one year after the provision of services, as per §933 b Abs. 1 ABGB. The customer does not have the right to receive payment back due to criticism. The presumption rule of § 924 ABGB is excluded.
The Agency will carry out its assigned work in compliance with the generally accepted principles of law and will advise the customer in good time of any identifiable risks. On no account does the Agency accept liability for claims against the customer on the basis of his marketing or advertising measures, as long as the Agency has carried out its duty to inform. In particular, the Agency accepts no liability for legal costs, the customer’s own lawyer’s costs or costs for the publication of the judgement, as well as for any compensation or similar claims on behalf of third parties. The Agency accepts liability within the framework of the legal provisions solely for damages insofar as its intent or gross negligence can be proven. Liability for ordinary negligence is excluded, the existence of gross negligence must be proved by the injured party.
8. WITHDRAWAL FROM THE CONTRACT
The Agency may withdraw from the contract if it proves impossible to carry out the provision of services due to reasons for which the customer is responsible or if further delays occur despite the implementation of a 14-day deadline extension; as when genuine concerns as regards the creditworthiness of the customer arise and the latter, on the request of the Agency, neither makes an advance payment nor provides a suitable security before the provision of services by the contractor. In addition, if insolvency proceedings have begun on the assets of the contractor.
9. DATA PROTECTION
For information on data protection we ask you kindly to read our data protection declaration.
10. APPLICABLE LAW
The contract and all mutual rights and obligations deriving there from, as well as claims between the Agency and the customer are covered by Austrian Material Law to the exclusion of the UN Convention on Contracts.
11. PLACE OF PERFORMANCE AND JURISDICTION
11.1. The place of performance is the seat of the Agency. The customer takes on the risks of any shipping from the moment that the Agency gives the consignment to a shipping company.
11.2. The relevant specialised court for the seat of the Agency is agreed as the place of jurisdiction for all legal disputes as regards the contractual relationship between the Agency and the customer.
Status as of: 14th February 2019