GENERAL TERMS AND CONDITIONS
IN THE HEADROOM GMBH
SCOPE OF APPLICATION
- These General Terms and Conditions of Contract (“GTC“) apply to all orders and contractual relationships between the client (“CLIENT“) and in the headroom GmbH (“AGENCY“), this also applies to future orders and even if no express reference is made to the applicability of the GTC. Supplementary, deviating or conflicting terms and conditions of business or contractual conditions of the CLIENT (regardless of their form or type) shall not apply and are hereby expressly rejected.
- Each assignment is based on the scope (briefing) given by the CLIENT, within which the AGENCY has complete freedom of design in the fulfilment of the assignment. The AGENCY performs its services on its own responsibility (through its organs and employees) but is entitled to involve external cooperation partners (such as freelancers or other subcontractors) in addition to its own employees.
- The contract is concluded by transmission of the written order confirmation.
- The CLIENT ensures that the AGENCY is provided all information, circumstances, documents and materials at its disposal at all times, which are necessary for the fulfilment of the services. The CLIENT shall provide these to the AGENCY in a timely manner, completely and free of charge and shall issue appropriate instructions (obligation to cooperate). The AGENCY is not obliged to warn about their suitability / completeness for the fulfilment of the order.
INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF USE
- The works, graphics, concepts, ideas, renderings, composing, illustrations, texts, photos, including all preliminary and intermediate results and individual parts thereof (collectively also “Work Results“) created by the AGENCY (or its organs, employees respectively) are works in the sense of copyright and remain, as well as the individual pieces and design originals, the property of the AGENCY. The cooperation of the CLIENT required in the context of the fulfilment of the order does not constitute any right of co-authorship.
- The AGENCY (or its organs, employees respectively) are entitled to assert the applicable moral rights under copyright (as well as similar rights) in relation to the work results, in particular to demand the attachment of name, company name and/or logo in a recognizable manner on/to the work piece (as well as copies itself, as well as to specify type, size and form at any time. If this is not technically possible or feasible, the AGENCY and the CLIENT shall agree on a suitable form of reference (in the imprint or similar). In any case, the AGENCY has the right (even if the amendment right is granted) to object to a derogatory treatment or one that affects the intellectual interests in respect the work piece at any time.
- Unless otherwise agreed, the AGENCY grants the CLIENT a non-exclusive right of use to the work results in the version delivered.
- Unless otherwise agreed, the CLIENT only acquires these rights of use to the extent (in terms of time, space and content) and for those purposes that are absolutely necessary for the fulfilment of the order. Any other or further use, and in particular the amendment, modification (including updating / further development) or imitation of the work results is not permitted, unless an explicit consent of the AGENCY is granted in exchange for a corresponding separate fee.
- The rights of use granted to the CLIENT may only be transferred / licensed / passed on to third parties with the express prior consent of the AGENCY, regardless of whether this is done in exchange for payment or free of charge.
- The CLIENT is obliged to ensure that the work results are only used for the agreed purpose and to the agreed extent and, if necessary, must effectively transfer the relevant obligations to third parties. The AGENCY has a right to be informed at any time regarding the scope of use of the work results.
- The CLIENT acquires the rights of use upon full payment of the total fee (including incidental expenses). The CLIENT does not acquire property or any rights of use in respect of drafts, presentations, elaborations and computer data.
- The CLIENT shall not acquire any rights to the work results beyond those set forth in these GTC or by separate agreement, or any other rights. In particular, unless otherwise agreed, the CLIENT is not permitted to apply for, register or claim intellectual property rights or other rights relating to the work results in its own name.
- For any unlawful use, the CLIENT is liable to the AGENCY to an amount at least twice the appropriate license fee for such use.
- Unless expressly agreed upon otherwise, the services of the AGENCY are provided against remuneration, this includes in particular presentations. In case an express agreement as to the amount of the presentation fee is absent, 50% of the design fee shall be agreed pursuant to the fee guidelines of Design Austria.
- Even upon payment of the presentation fee, the CLIENT does not acquire any rights of use whatsoever in and to the presentation or the documents.
- If no order is placed after the presentation has been carried out or only a significantly reduced order, the AGENCY is entitled to the full design fee instead of the reduced presentation fee (clause 14.)
- The AGENCY’s fee shall be primarily determined by the respective offer; in case of doubt, the fee guidelines of Design Austria (as amended from time to time) shall be decisive. Prices are in Euro (EUR) excluding VAT. The fee shall be due without deduction when the invoice is issued, at the latest when the work results are handed over by AGENCY. The AGENCY is entitled to perform and issue partial invoices. If the CLIENT is in default with the payment of the fee (or a part thereof), a default interest rate of twelve (12) percent (%) p.a. is deemed to be agreed. In such a case the AGENCY is not obliged to provide further services to the CLIENT until settlement of all due payment claims. The CLIENT is not entitled to offset his own claims against claims of the AGENCY or to withhold payments for any reason whatsoever.
- In the absence of any other agreement, the standard service listed in the fee guidelines of Design Austria, including transfer of the production data, shall be deemed agreed. Development and/or computer data shall only be supplied if agreed and a corresponding additional fee has been stipulated in writing.
- The AGENCY is entitled to provide necessary or agreed additional services in connection with the order (e.g. coordination and supervision of duplication/production, colour matching or printing supervision) for remuneration in accordance with the fee guidelines of Design Austria (or customary local fees) or to commission third parties to do so in the name and on account of the CLIENT.
- Deadlines and dates for services communicated by the AGENCY are always non-binding, unless a fixed deadline or date has been expressly guaranteed upon in writing.
- The AGENCY is not liable for any delay in performance or impossibility of performance (or part of it) due to force majeure/other non-influenceable obstructions (such as in particular, but not exclusively, strikes, fires, natural disasters, floods, epidemics/pandemics, warlike/terrorist activities, industrial actions, interruption of operations, changes in the official approval or legal situation, and official orders that are not attributable to the operational risk), delay in commissioned external services or the CLIENT’S violation of its duty to cooperate.
- The CLIENT is obliged to check the work results for completeness, correctness and absence of defects immediately, but at the latest within five (5) working days after delivery and, if necessary, issue a respective complaint in writing. Otherwise, the work results shall be deemed approved and claims regarding warranty, compensation for damages and errors considering the absence of defects shall be excluded. The warranty period shall be six (6) months from the date of delivery; the rule of presumption pursuant to s 924 ABGB is hereby expressly excluded.
- In case of justified and timely note of defects, the CLIENT has the right to have the respective service improved or replaced by the AGENCY. The AGENCY will correct the defects within a reasonable period of time, whereby the CLIENT will enable all measures necessary for inspection and correction of the defects. The AGENCY is entitled to refuse to improve the service if it is impossible or involves a disproportionate effort. In this case, the CLIENT has the right to a reduction in the fee or (in the case of a defect that is not merely minor) rescission of the contract.
- The place of performance for all services under tho the contractual relationship between the AGENCY and the CLIENT is the AGENCY’S headquarters.
- The AGENCY (as well as its organs, employees, representatives or vicarious agents) is not liable for material and financial damages as a result of slight negligence. The liability for gross negligence is limited to the net fee of the corresponding order. In no case is the AGENCY liable for indirect damages, consequential damages, loss of profit or for hard-/software damages. Gross negligence must be proven by the CLIENT.
- Any advice given by AGENCY relates exclusively to the field of “design”, and expert liability is limited accordingly to this area.
- Third parties commissioned by the AGENCY for necessary or agreed third-party-services in connection with the order on the CLIENT’S account are not vicarious agents of the AGENCY.
- The CLIENT bears the sole responsibility and liability for the accuracy, completeness and legal admissibility (in particular, but not exclusively, under the provisions of intellectual property law, competition law, administrative and criminal law) of the work results and their use. The AGENCY assumes no responsibility or liability with respect to the accuracy or completeness of the work results to the extent that they have been approved/released by the CLIENT or the CLIENT has at least been offered to examine the same by the AGENCY. The AGENCY is also not liable for any particular success.
- The CLIENT represents, warrants (s 880a ABGB) and guarantees that the information, documents and materials (including photographs, texts, models, samples, graphics) provided to the AGENCY are completely free of third party rights (in particular, but not exclusively, intellectual property rights, personal rights, security rights and/or secrecy interests), that the CLIENT is entitled to use them accordingly and that no third party rights are infringed by the services of the AGENCY, processing and/or use. In this context, the CLIENT fully indemnifies and holds harmless the AGENCY and its organs and employees.
SPECIMEN COPY, REFERENCES
- The CLIENT shall provide the AGENCY with five (5) perfect specimen copies of all work results free of charge and without further request. The AGENCY may use these (as well as any copies thereof) without restriction for the purpose of self-promotion and has the right to make them publicly accessible and available (this includes in particular, but not exclusively, the use in printed publications and within the framework of the AGENCY’S online presence and similar media).
- Unless otherwise agreed, the AGENCY is entitled to mention the CLIENT’s name/company name and the order (possibly together with the use of specimen copies according to clause 30.), to include it in its list of references (regardless of the medium used for it) and to use and publish it.
- The CLIENT receives all work results to hold them in trust. Until the rights of use have been acquired in accordance with these GTC, the CLIENT shall not be permitted to make copies (of any kind) of the work results (or parts thereof) and/or make the same available to third parties. This does not apply to making them available to polling institutes or for the purpose of decision making by the CLIENT, in which case the CLIENT shall impose corresponding obligations on any persons involved.
- Design originals and computer data must be resent or returned undamaged to the AGENCY at the risk and expense of the CLIENT when they are no longer required for the agreed use.
- The AGENCY is obliged to retain order documents, drafts and elaborations for the duration of one (1) year upon completion.
- After the first presentation, the AGENCY and the CLIENT have the right to withdraw from the order without giving any reason and upon payment of the presentation fee (clause 14.) The AGENCY is not obliged to accept an order.
- Any termination of the contractual relationship after this date by the CLIENT, unless such termination is for cause for which the AGENCY is responsible, does not release the CLIENT from its obligation to pay the total fee plus any costs for additional services and other costs incurred until the termination becomes effective.
- Notwithstanding the above, the AGENCY is entitled to demand compensation from the CLIENT for work capacity provided but not used, as well as any damage suffered.
- For the avoidance of doubt, in case of withdrawal or premature termination of the contract, no rights of use of any kind regarding the work results are transferred to the CLIENT; these remain with the AGENCY or revert back to it completely. In such case, the AGENCY will not charge a separate fee for the rights of use.
- The AGENCY is entitled to terminate the contractual relationship with immediate effect for cause. Cause shall be deemed to exist particularly, but not exclusively, if (i) the CLIENT violates the CLIENT’s obligations to cooperate or other essential contractual obligations; or (ii) is objectively or subjectively in default of payment of a due claim for more than fourteen (14) calendar days despite the setting of a reasonable period of grace; or (iii) insolvency proceedings are opened against the assets of the CLIENT or the opening is rejected due to lack of assets.
DATA PROCESSING/DATA PROTECTION
- The AGENCY collects data (including personal data) from the CLIENT and/or its employees during the initiation / processing of contracts. In doing so, it observes the provisions of the GDPR (General Data Protection Regulation No 2016/679) and applicable national data protection provisions. The provisions of this section “DATA PROCESSING / DATA PROTECTION” only apply with regard to personal data of natural persons as defined in art 4 (1) GDPR.
- Responsible person within the meaning of art 4 (7) GDPR is “in the headroom GmbH” (for details see imprint footer). The following personal data concerning the CLIENT (or its employees) may be collected and processed: (i) first name and surname of contact person/company, (ii) company registration number, (iii) postal address, (iv) e-mail address, (v) VAT number, (vi) bank or credit card details, (vii) telephone number.
- Personal data are processed primarily for the performance of a contract or for the implementation of pre-contractual measures (art 6 par 1 (b) GDPR). In addition, processing is carried out to protect the legitimate interests of the AGENCY or legitimate interests of third parties (art 6 par 1 (f) GDPR), in particular for the purposes of receivables-management, direct marketing in analogue and digital form, the acquisition of existing customers, for the purpose of referring to an existing or previous business relationship (reference), statistical evaluation and the improvement of our range of services and its quality.
- Personal data will only be passed on to third parties if necessary for the fulfilment of the contractual relationship.
- The CLIENT’s personal data is protected by organizational and technical measures, such as protection against unauthorized access, impairment or loss and technical data security provisions.
- Personal data is only stored by the AGENCY for as long as it is necessary to fulfil contractual or legal obligations (art 6 par 1 (b) GDPR) and/or for claims-management (corresponding storage obligations can arise, for example, particularly from tax regulations – a legal basis for the storage of data in this context also results from art 6 par 1 (c) GDPR). If this necessity is no longer present, the data will be deleted.
- The CLIENT has the right at all times to
– to receive information about his stored personal data, its origin, the purpose of processing and, if applicable, the recipient of this data (art 15 GDPR), free of charge;
– to demand the correction, transmission, restriction of processing, blocking or deletion of personal data if it is incorrect or if the basis for processing ceased to exist (art 16, 17, 18, 20 GDPR);
– to object to the processing of personal data on the basis of art 6 par 1 (f) GDPR (“protection of legitimate interests”) (art 21 GDPR);
– to refuse the further use for contact by electronic mans when personal data is collected and with every transmission, free of charge (§107 par 3 (3) TKG).
Such claims should be addressed to firstname.lastname@example.org.
- Should the CLIENT believe that the processing of personal data violates applicable data protection laws, or if its rights resulting from data protection laws have been violated in any other way, the CLIENT has the right to file a complaint with the competent supervisory authority (according to art 77 GDPR).
- The GTC and the contractual relationship between the AGENCY and the CLIENT are governed exclusively by the laws of the Republic of Austria, excluding its provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of jurisdiction for all legal disputes arising directly or indirectly from this contractual relationship is agreed to be the competent court for the AGENCY’s registered office.
- Should any of the provisions of these GTC be or become illegal, invalid or unenforceable, the remaining provisions shall not be affected. As long as the parties have not agreed on a different provision, a provision – replacing the invalid provision- shall apply, which is valid and which takes into account the economic purpose of the original provision and the intention of the parties at the time of concluding this agreement cy pres.