1. INTRODUCTION / VALIDITY
1.1. RETAILxDESIGN GmbH (hereinafter referred to as the "Agency") shall provide its services exclusively in accordance with the following General Terms and Conditions (GTC). These shall apply to all legal relationships between the Agency and the Client, even if no specific reference is made to them.
1.2. The GTC version valid at the time of the conclusion of the contract shall be relevant. Deviations from this version or other additional agreements with the Client require written confirmation by the Agency.
1.3. Any terms and conditions of the Client shall not be accepted, even if the Agency is aware of them. Individual exceptions require written confirmation by the Agency. The Agency expressly objects to the Client's general terms and conditions. No further objection to the Client's GTC by the Agency shall be required
1.4. Amendments to the GTC shall be notified to the Client and shall be deemed agreed if the Client does not object to the amended GTC in writing within 14 days; The Client shall be advised in particular to the significance of silence as constituting consent.
2. PRE-CONTRACTUAL INFORMATION
2.1. Copyrights of provided content: The Agency is not able to verify the content provided by the Client (e.g. photos, texts, graphics, logos, music) for potential infringements of rights. It is the responsibility of the Client to clear the rights for such content provided.
2.2. Risk disclaimer: The agency develops concepts and designs including proposals for materials, form, colour and functionality with regard to their use, ergonomics, market appeal and efficiency, without constructive planning activities and to the exclusion of the activities reserved for engineering offices (consulting engineers). The Agency is in no way liable for the risk of technical producibility, technical construction, or conformity with applicable standards and regulations, such as health and safety regulations.
2.3. If the Agency advises the Client before the implementation of a project that a concrete risk is associated with a project, or that third-party rights or laws could be violated, and if the Client accepts this risk, it shall be deemed agreed and assumed that the Agency has fulfilled its contractual obligations.
3. SERVICES / ORDER FULFILMENT / OBLIGATIONS OF THE CLIENT
3.1. The scope of the services to be provided is set out in the offer ("offer documents"). Subsequent changes to the scope of service require written confirmation by the Agency.
3.2. The Client shall provide the Agency in a timely and complete manner with all information and documents needed to provide the services and shall name a competent contact person with the necessary authorisations to make statements. He shall inform the Agency of any circumstances relevant to the execution of the order, even if these only become known during the execution. The Client shall bear the cost for any repeated tasks or delays, resulting from incorrect, incomplete or subsequently changed information.
3.3. Furthermore, the Client is obliged to verify all documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose.
3.4. The Agency shall not be liable for an infringement of such third-party rights for provided documents in the case of just slight negligence or after fulfilment of its duty to warn - specifically in the internal relationship with the Client. If a claim is made against the Agency by a third party due to such an infringement of rights, the Client shall indemnify and hold the Agency harmless; the Client shall compensate the Agency for all disadvantages incurred by the Agency due to a claim made by a third party, in particular the costs of adequate legal representation. The Client accepts the obligation to support the Agency in the defence against any claims by third parties. The Client shall provide the Agency with all documents for this purpose without being requested to do so.
4. EXTERNAL SERVICE / COMMISSION OF THIRD PARTIES
4.1. For the provision of the contractual services, the Agency shall be entitled, at its discretion, to render services itself, to make use of competent third parties that act as vicarious agents, and/or to substitute such services ("third-party service").
4.2. The commissioning of third parties within the scope of an external Service shall take place either in the Agency's name or in the name of the Client. The Agency shall carefully select this third party and ensure that it has the necessary professional qualifications.
4.3. If the Agency commissions necessary or external services that are contractually agreed upon, the respective contractors shall not be vicarious agents of the Agency.
4.4. The Client enters into obligations to third parties which extend beyond the term of the contract and which have been disclosed to the Client. This shall also expressly apply in the event of termination of the Agency contract for a good cause.
5.1. Unless expressly agreed as binding, proposed delivery of service deadlines are only approximate and non-binding. Binding agreements on deadlines shall be documented in writing or confirmed by the Agency in writing.
5.2. If the Agency's service is delayed for reasons for which it is not responsible (in particular also due to waiting for approvals), 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 impediment and the deadlines shall be extended accordingly. If such delays last for more than two months, the Client and the Agency shall be entitled to withdraw from the contract.
5.3. If the Agency is in default, the Client may only withdraw from the contract after he has set the Agency a reasonable grace period of at least 14 days in writing and this period has elapsed unsuccessfully. 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.
6.1. The Agency shall be entitled to terminate the contract with immediate effect for good cause. An important reason shall be deemed to exist in particular if
a. the performance of the service becomes impossible for reasons for which the Client is responsible or is further delayed despite a grace period of 14 days being set;
b. the Client continues to breach essential obligations under this contract, such as payment of due duties to cooperate, despite a written warning with a grace period of 14 days.
c. there are justified concerns about the creditworthiness of the Client and the Client does not make advance payments at the Agency's request or provide suitable security before the Agency's performance.
6.2. The Client shall be entitled to terminate 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 reasonable grace period of at least 14 days to remedy the violation of the contract.
7.1. The Agency shall state the terms of payment in its offer. Unless otherwise stated, the Agency's fee claim arises for each service as soon as it has been rendered.
7.2. The fee is understood to be a net fee plus VAT at the statutory rate.
7.3. All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately.
7.4. Cost estimates of the Agency are non-binding cost estimates. 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.
7.5. The Agency shall be entitled to the agreed full remuneration for all work carried out by the Agency which, for whatever reason, is not implemented by the Client. The offsetting provision of § 1168 ABGB is excluded. Upon payment of the fee, the client does not acquire any rights of use to work already performed.
8. PAYMENT, RETENTION OF TITLE
8.1. The fee is due for payment within 30 days without reduction unless stated otherwise in the offer document.
8.2. The works delivered by the Agency shall remain the property of the Agency until full payment of the fee including all ancillary liabilities.
8.3. In the event of default in payment on the part of the Client, the statutory interest on arrears shall apply at the rate applicable to business transactions (§ 456 UGB). Furthermore, in the event of default in payment, the Client undertakes to indemnify the Agency for the reminder and collection costs incurred, insofar as they are necessary for adequate legal action. This shall in any case include the costs of two reminders at the usual market rates of currently at least € 25.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
8.4. In the event of default in payment on the part of the Client, the Agency shall be entitled to demand immediate payment for all services and partial services rendered under other contracts concluded with the Client.
8.5. Furthermore, in the event of default, the Agency shall not be obliged to provide further services until the outstanding amount has been settled ("right of retention"). The obligation to pay remuneration shall remain unaffected.
8.6. If payment in instalments has been agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt if partial amounts or ancillary claims are not paid on time ("Terminverlust").
8.7. The Client shall not be entitled to set off its claims against claims of the Agency unless the Client's claim has been recognised by the Agency in writing or has been established by a court of law.
9. COPYRIGHTS / PROPERTY RIGHTS
9.1. Through payment of the fee, the Client acquires the right to use and exploit the services provided by the Agency. If several proposed solutions (alternative designs) are submitted, only one design selected by the Client shall be covered by the fee. If several alternative designs are used, a separate fee shall be paid for each variant. The Agency may make unrestricted use elsewhere of any designs that are not utilised. The Client shall be obliged to maintain secrecy concerning designs that have not been chosen.
9.2. The acquisition of rights of use and exploitation of services provided by the Agency shall in any case be subject to full payment of the fees charged by the Agency for such services.
9.3. Insofar as third-party software is necessary for the use of the Agency's services, the corresponding licences shall be procured by the Client at its own expense. The Agency shall point out the necessity of separate licensing.
9.4. Editing of the Agency's services is only permitted with the Agency's express consent.
10. REFERENCES / PUBLICITY
10.1. The Agency is entitled to use the name, the logo, and the designs created by the Agency during the cooperation on its advertising media and in particular on its website and social media channels without any temporal or spatial restrictions. However, the designs created shall only be used as soon as they have been published in any form by the Client, or if the designs stay unpublished for more than one year. The Client may assert his editorial veto right in writing at any time.
11.1. The Agency shall provide a warranty for its commercial services in accordance with the provisions of §§ 922ff ABGB.
11.2. The Agency is in no way liable for the risk of technical producibility, technical construction, or conformity with applicable standards and regulations, such as health and safety regulations.
11.3. The Client shall report any errors without delay in writing, describing the error, but at the latest within fourteen working days after delivery of the service by the Agency, and hidden imperfections within fourteen working days after recognising them; otherwise, the service shall be considered approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to imperfections shall be excluded.
11.4. In the event of justified and timely notification of errors, the Client shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the errors within a reasonable time, whereby the Client shall enable the Agency to take all measures necessary to examine and remedy the errors. 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 Client shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be incumbent on the Client to transfer of the defective (physical) item at his own expense.
11.5. It shall be incumbent on the Client to verify the work regarding its legal admissibility, in particular regarding competition, trademark, copyright and administrative law.
11.6. The warranty period is six months from the delivery of the service.
12.1. The liability of the Agency and that of its organs, employees, contractors or other vicarious agents ("people") shall be limited in principle to intent or gross negligence; liability for slight negligence shall be excluded. This exclusion of liability shall not apply to personal injury and damage to property that the Agency has taken over for processing. Insofar as the liability of the Agency is excluded or limited, this shall also apply to the personal liability of its "people".
12.2. Claims for damages on the part of the Client 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 value of the order.
13.1. As data subject, you are entitled to various rights under the GDPR, which arise in particular from Articles 15 to 21 of the GDPR:
14.1. Should individual provisions of the GTC be or become invalid in whole or in part, or in case of a gap leaving scope for interpretation, this shall not affect the validity of the remaining provisions.
14.2. Amendments and supplements to the GTC must be made in writing. This also applies to any waiver of the written form requirement. Declarations by e-mail or fax shall be in writing.
14.3. If in these GTC or other contracts of the Agency terms referring to natural persons are only stated in the masculine form, they refer to women and men in the same way. The respective gender-specific form shall be used when applying the designation to specific natural persons.
15. APPLICABLE LAW / PLACE OF JURISDICTION / PLACE OF FULFILMENT
15.1. This contractual relationship shall be governed by Austrian substantive law to the exclusion of the conflict of law rules.
15.2. The place of jurisdiction for all disputes arising directly or indirectly from the contract shall be the local and competent Austrian court for 1090 Vienna.
15.3. The place of fulfilment for the contractual services is at 1090 Vienna.
* These General Terms and Conditions are based on the GTC of the WKO, Fachverband Werbung und Marktkommunikation.
