General Terms and Conditions of Apolline Design Studio
Sophia Humer
Am Berg 13, 4563 Micheldorf
Austria
hello@apollinedesign.com
1. Applicability; Conclusion of contract
1.1 Sophia Humer (hereinafter "Graphic Designer") shall provide her services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between the Graphic Designer and the Customer, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, i.e. B2B transactions.
1.2 The version applicable at the time of conclusion of a contract shall be relevant. Deviations from these GTC and other supplementary agreements with the Customer shall only be effective if they have been confirmed by the Graphic Designer in writing.
1.3 Terms and conditions of the Customer, if any, shall not be accepted, even if the Graphic Designer knows them, unless expressly agreed otherwise in writing on a case-by-case basis. The Graphic Designer expressly objects to GTC of the Customer. No other objection of the Graphic Designer to the Customer's GTC shall be required.
1.4 The Customer shall be informed about amendments to the GTC; they shall be deemed agreed unless the Customer objects to the amended GTC in writing within 14 days; in the information the Customer will be expressly informed about the consequence of silence on his part.
1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded on the basis of the same shall not be affected. The ineffective provision shall be replaced by an effective provision which comes as close as possible to the meaning and purpose of the ineffective one.
1.6 The Graphic Designer's offers shall be subject to change without notice and non-binding.
2. Protection of Concepts and Ideas
If a potential Customer has already invited the Graphic Designer beforehand to develop a concept and if the Graphic Designer accepts this invitation prior to conclusion of the principal contract, the following shall apply:
2.1 By the invitation and acceptance of the invitation by the Graphic Designer the potential Customer and the Graphic Designer enter into a contractual relationship ("pitching contract"). That contract will also be based on the GTC.
2.2 The potential Customer acknowledges that already by developing a concept the Graphic Designer will render cost-intensive services, even though the Customer himself has not taken on any performance duties yet.
2.3 To the extent that they reach the level of originality required for copyright protection the linguistic and graphic parts of the concept are protected by the Austrian Copyright Act [Urheberrechtsgesetz]. The potential Customer is not permitted to use or edit those parts without the Graphic Designer's consent due to the Austrian Copyright Act alone.
2.4 Furthermore, the concept contains ideas that are relevant to advertising which do not reach the level of originality required for copyright protection and are thus not protected by the Austrian Copyright Act. Such ideas are generated at the beginning of every creative process and may be defined as the creative spark for all subsequent work results and, thus, as the origin of the marketing strategy. Accordingly, those elements of the concept are protected which are unique and characterise the marketing strategy. For the purpose of this agreement ideas shall in particular mean advertising slogans, advertising texts, graphics and illustrations, advertising means etc., even if they do not reach the level of originality required for copyright protection.
2.5 The potential Customer undertakes not to exploit or have exploited commercially and/or use or have used the creative advertising ideas which the Graphic Designer presented as part of the concept in any context other than the corrective of a principal contract to be concluded at a later time.
2.6 If the potential Customer is of the opinion that the Graphic Designer presented ideas to him which he already had before the presentation, he shall notify the Graphic Designer thereof via e-mail within 14 days of the day of the presentation and include means of evidence which allow a chronological allocation.
2.7 Otherwise the Parties will assume that the Graphic Designer has presented an idea to the potential Customer which is new to him. If the Customer uses the idea, it has to be assumed that the Graphic Designer received remuneration therefor.
2.8 The potential Customer may be released from his duties under this Clause if he pays a reasonable compensation. Such release shall become effective only after receipt of the full compensation payment by the Graphic Designer.
3. Scope of services; Order processing; Customer's duties to co-operate
3.1 The scope of the services to be rendered shall be based on the specifications of the Graphic Designer Agreement or the Graphic Designer's acknowledgment of order, if any, and the briefing report, if any ("Offer Documents"). Subsequent modifications of the services shall be subject to the Graphic Designer's written confirmation. When executing the order the Graphic Designer shall be free in her discretion within the framework specified by the Customer.
3.2 All services of the Graphic Designer (including but not limited to all preliminary designs, sketches, final drawings, proofs, blueprints, copies, coloured prints and electronic files) shall be checked by the Customer and released within three working days of receipt by the Customer. If they are not released within that period, they shall be deemed approved by the Customer. After that period has expired with no reply from the Customer they shall be deemed accepted by the same.
3.3 The Customer shall make accessible to the Graphic Designer completely and in time all information and documents required for rendering the service. The Customer shall notify the Graphic Designer of all circumstances that are relevant to execution of the order, even if they become known only in the course of execution of the order. The Customer shall bear the costs incurred due to the fact that work has to be done again by the Graphic Designer or is delayed because of his incorrect, incomplete or subsequently modified specifications.
3.4 In addition, the Customer is obliged to clear the documents made available by him for execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled her duty to warn the Customer, the Graphic Designer shall not be liable (at least as regards the relationship between the Graphic Designer and the Customer) for an infringement of such rights of third parties by documents made available by the Customer. If the Graphic Designer is held liable for an infringement of such rights, the Customer shall indemnify and hold harmless the Graphic Designer and shall compensate the Graphic Designer for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The Customer undertakes to support the Graphic Designer in defending claims of third parties, if any. For this purpose the Customer shall provide the Graphic Designer with all documents without request.
4. External services; Commissioning of third parties
4.1 The Graphic Designer shall be entitled at her own discretion to render the services itself, to employ expert third parties as agents [Erfüllungsgehilfen as defined by Section 1313a of the Austrian General Civil Code [ABGB]] and/or to commission a third party to render such services ("External Service").
4.2 Commissioning of third parties in connection with an External Service shall be done either in the Graphic Designer's own name or in the name of the Customer. The Graphic Designer shall select the relevant third party with care and ensure that it is appropriately qualified.
4.3 The Customer shall assume obligations vis-à-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the Graphic Designer contract for cause.
5. Deadlines
5.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Graphic Designer in writing.
5.2 If the delivery/service of the Graphic Designer is delayed for reasons for which the Graphic Designer is not responsible, such as, e.g. events of force majeure or other unforeseeable events that cannot be prevented 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 continue for more than two months, the Customer and the Graphic Designer shall be entitled to rescind the contract.
5.3 If the Graphic Designer is in default, the Customer may only rescind the contract after having granted the Graphic Designer a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the Customer for damages on the ground of non-performance or default shall be excluded, unless intent or gross negligence can be proved.
6. Early termination
6.1 The Graphic Designer shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where
(a) provision of a service becomes impossible for reasons for which the Customer is responsible or is further delayed even though the Customer was granted a grace period of 14 days;
(b) the Customer continues to violate material obligations under this contract, such as, e.g. the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days.
(c) legitimate concerns exist regarding the Customer's credit standing and, upon the Graphic Designer's request, the Customer fails to make advance payments or to furnish suitable security prior to provision of the service by the Graphic Designer;
6.2 The Customer shall be entitled to terminate the contract for cause without having to grant a grace period. A cause shall be, in particular, where the Graphic Designer repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.
7. Fees
7.1 Unless otherwise agreed the Graphic Designer's entitlement to fees shall arise for any specific service once the same has been rendered. The Graphic Designer shall be entitled to ask for advances to cover her expenses.
7.2 The fees shall be stated as net fees. If in a specific case no agreement on fees has been concluded, the Graphic Designer shall be entitled to fees at market rates for the services rendered and for transfer of copyrights and marks.
7.3 All services of the Graphic Designer which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by the Graphic Designer shall be reimbursed by the Customer.
7.4 Cost estimates provided by the Graphic Designer shall be non-binding. If it becomes clear that the actual costs will exceed the Graphic Designer's written cost estimate by more than 15 per cent, the Graphic Designer shall advise the Customer of such higher costs. The increase in costs shall be deemed accepted by the Customer if the Customer does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the Customer from the beginning.
7.5 If the Customer unilaterally modifies or cancels work ordered without involving the Graphic Designer and notwithstanding other regular support from the same, the Customer shall pay the Graphic Designer for the services provided by then according to the agreement on fees and shall reimburse all costs incurred. Unless work is cancelled on the ground of a breach of the Graphic Designer's duties by gross negligence or wilful intent, the Customer shall, in addition, pay the Graphic Designer the total fee (commission) agreed for that contract, and the allowance [Anrechnungsvergütung] as defined in Section 1168 of the Austrian Civil Code [ABGB] shall be excluded. Furthermore, the Graphic Designer shall be indemnified and held harmless from and against any third-party claims, in particular of the Graphic Designer's contractors. By payment of the fees the Customer shall acquire no rights to use work already carried out; concepts, drafts and other documents which were not implemented shall rather be returned to the Graphic Designer without delay.
8. Zahlung, Eigentumsvorbehalt
8.1 Das Honorar ist sofort mit Rechnungserhalt und ohne Abzug zur Zahlung fällig, sofern nicht im Einzelfall besondere Zahlungsbedingungen schriftlich vereinbart werden. Dies gilt auch für die Weiterverrechnung sämtlicher Barauslagen und sonstiger Aufwendungen. Die von der Werbegraphik-Designerin gelieferte Ware bleibt bis zur vollständigen Bezahlung des Entgelts einschließlich aller Nebenverbindlichkeiten im Eigentum der Werbegraphik-Designerin.
8.2 Bei Zahlungsverzug des Kunden gelten die gesetzlichen Verzugszinsen in der für Unternehmergeschäfte geltenden Höhe. Weiters verpflichtet sich der Kunde für den Fall des Zahlungsverzugs, der Werbegraphik-Designerin die entstehenden Mahn- und Inkassospesen, soweit sie zur zweckentsprechenden Rechtsverfolgung notwendig sind, zu ersetzen. Dies umfasst jedenfalls die Kosten zweier Mahnschreiben in marktüblicher Höhe von derzeit zumindest € 20,00 je Mahnung sowie eines Mahnschreibens eines mit der Eintreibung beauftragten Rechtsanwalts. Die Geltendmachung weitergehender Rechte und Forderungen bleibt davon unberührt.
8.3 Im Falle des Zahlungsverzuges des Kunden kann die Werbegraphik-Designerin sämtliche, im Rahmen anderer mit dem Kunden abgeschlossener Verträge, erbrachten Leistungen und Teilleistungen sofort fällig stellen.
8.4 Weiters ist die Werbegraphik-Designerin nicht verpflichtet, weitere Leistungen bis zur Begleichung des aushaftenden Betrages zu erbringen (Zurückbehaltungsrecht). Die Verpflichtung zur Entgeltzahlung bleibt davon unberührt.
8.5 Wurde die Bezahlung in Raten vereinbart, so behält sich die Werbegraphik-Designerin für den Fall der nicht fristgerechten Zahlung von Teilbeträgen oder Nebenforderungen das Recht vor, die sofortige Bezahlung der gesamten noch offenen Schuld zu fordern (Terminverlust).
8.6 Der Kunde ist nicht berechtigt, mit eigenen Forderungen gegen Forderungen der Werbegraphik-Designerin aufzurechnen, außer die Forderung des Kunden wurde von der Werbegraphik-Designerin schriftlich anerkannt oder gerichtlich festgestellt.
9. Title and copyright
9.1 The Graphic Designer shall retain title to all services of the Graphic Designer, including services in connection with presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides), including parts thereof, as well as the individual workpieces and original designs and the Graphic Designer may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees the Customer shall acquire the right to use the services for the designated purpose agreed. Unless otherwise agreed the Customer shall, however, use the Graphic Designer's services exclusively in Austria. Acquisition of rights to use and exploit the Graphic Designer's services shall in any case be subject to full payment of the fees charged by the Graphic Designer for the same. If the Customer uses the Graphic Designer's services already prior to that time, such use shall be based on a loan relationship that may be revoked at any time.
9.2 Modifications and/or editing of services of the Graphic Designer, including but not limited to further development of the same by the Customer or third parties working for the Customer, shall only be permitted with the express consent of the Graphic Designer and, to the extent that services are protected by copyright, of the author. The delivery of editable data („offene Daten“) is explicit not part of the contract. The graphic designer is not obligated to deliver editable data to the Customer. That means without any right of usage within the contract the Customer has no legal claim to receive editable data.
9.3 Use of the Graphic Designer's services beyond the originally agreed purpose and scope of use shall be subject to the Graphic Designer's consent irrespective of whether such service is protected by copyright or not. In consideration thereof the Graphic Designer and the author shall be entitled to a separate reasonable fee.
9.4 After expiration of the Graphic Designer Agreement use of services of the Graphic Designer and/or advertising means for which the Graphic Designer developed concepts or designs shall also be subject to the Graphic Designer's consent irrespective of whether the service is protected by copyright or not.
9.5 The Customer shall be liable to the Graphic Designer for any unlawful use in the amount of twice the reasonable fees for such use.
10. Identification marks
10.1 The Graphic Designer shall be entitled to make reference to the Graphic Designer and the author, if applicable, on all advertising means and in any advertising and promotion measures, without the Customer being entitled to any payment in this respect.
10.2 The Graphic Designer shall be entitled to make reference to her current or former business relationship with the Customer on her own advertising media, including but not limited to her website, by referring to the Customer's business name and business logo, with the Customer having the right to revoke his consent in writing at any time.
11. Social Media Channels
Before an order is placed the Graphic Designer expressly points out to the Customer that providers of "social media channels" (e.g. facebook; hereinafter referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotional appearances for any reason whatsoever. Accordingly, Providers are not obliged to forward content or information to users. Thus, there is a risk, which cannot be calculated by the Graphic Designer, that advertisements or promotional appearances are removed for no reason. Although in the case of a complaint of a different user Providers do offer an opportunity to reply, the content will be immediately removed also in that case. In that case restoring the original, lawful condition may take some time. The Graphic Designer works on the basis of the Providers' terms and conditions of use, on which it has no influence, and also makes them the basis of Customer orders. By placing the order the Customer expressly acknowledges that those terms and conditions of use (co-)determine the rights and duties of a contractual relationship, if any. The Graphic Designer intends to execute the Customer's order to the best of her knowledge and belief and to comply with the policies of "social media channels". Due to the terms and conditions of use that are currently applicable and the fact that every user can easily allege a violation of the law with the aim that contents will be removed, the Graphic Designer cannot guarantee that the ordered campaign can be retrieved at any time.
12. Warranty
12.1 The Customer shall notify any defects immediately and in any case within eight days of delivery/provision of the service by the Graphic Designer and hidden defects not later than eight days after they were identified in writing including a description of the defect; otherwise the service shall be deemed accepted. In that case assertion of any warranty claims or claims for damages as well as the right to assert claims on account of mistake shall be excluded.
12.2 In the case of a justified and timely notification of defects the Customer shall be entitled to improvement or replacement of the delivery/service by the Graphic Designer. The Graphic Designer shall repair the defects within a reasonable period of time and the Customer shall enable the Graphic Designer to take all measures which are necessary for examination and repair of the defects. The Graphic Designer shall be entitled to refuse improvement of the service if such improvement is impossible or if the Graphic Designer were to incur disproportionately high costs. In that case the Customer shall be entitled to cancel the contract or get a fee reduction as provided for by law. In the case of improvement the Customer shall send the defective (physical) item at his cost.
12.3 The Customer shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. The Graphic Designer is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled her duty to warn the Customer, if any, the Graphic Designer shall not be liable for lawfulness of contents if they were advised or accepted by the Customer.
12.4 The warranty period shall be six months as of delivery/service. The right of recourse to the Graphic Designer as defined in Section 933 b (1) ABGB shall be forfeited one year after delivery/service. The Customer shall not be entitled to withhold payments on the ground of complaints. The presumption rule [Vermutungsregel] of Section 924 ABGB shall be excluded.
13. Liability and product liability
13.1 In cases of slight negligence liability of the Graphic Designer and her employees, contractors or other agents [translator's note: Erfüllungsgehilfen as defined by Section 1313a ABGB] ("People") for damage to property or pecuniary loss suffered by the Customer shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that the Graphic Designer's liability is excluded or limited this shall also apply to personal liability of her People.
13.2 Any liability of the Graphic Designer for claims asserted vis-à-vis the Customer on the ground of services rendered by the Graphic Designer (e.g. advertising and promotion measures) shall be expressly excluded, provided that the Graphic Designer complied with her duty to inform or if it was unable to see such a duty, even due to slight negligence. The Graphic Designer shall, in particular, not be liable for costs of legal proceedings, lawyer's fees of the Customer or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Customer shall indemnify and hold harmless the Graphic Designer in this respect.
13.3 Claims of the Customer for damages shall be forfeited six months after knowledge of the damage and in any case three years after the Graphic Designer's infringement. Claims for damages shall be limited to the net contract value.
14. Data protection (visual emphasis according to court rulings)
The Customer agrees that his personal data, namely name, occupation, date of birth, Business Register Number, powers to represent the company, contact person, business address and other addresses of the Customer, phone number, fax number, e-mail address, bank details, credit card details, VAT number) may be collected, stored and processed electronically for the purpose of performance of the contract and support of the Customer and for the Graphic Designer's own advertising and promotion purposes, for example by sending him offers, advertising brochures or newsletters (in hard copy or electronic form) and for the purpose of making reference to the current of former business relationship with the Customer. The Customer agrees to be sent electronic mail for advertising purposes until further notice.
Such consent may be revoked in writing via e-mail, fax or letter to the contact details stated in the header of these GTC at any time.
15. Applicable law
The Agreement and all mutual rights and duties resulting therefrom as well as any claims between the Graphic Designer and the Customer shall be subject to Austrian substantive law, and its conflicts of laws rules and UN Sales Law shall be excluded.
16. Place of performance and place of jurisdiction
16.1 The place of performance shall be the registered office of the Graphic Designer (Am Berg 13, 4563 Micheldorf, Austria). In the case that goods are shipped the risk shall pass to the Customer once the Graphic Designer has delivered the goods to the carrier chosen by it.
16.2 The agreed place of jurisdiction for all legal disputes arising between the Graphic Designer and Customer in connection with this contractual relationship shall be the court having jurisdiction over the subject-matter and the Graphic Designer's registered office. Notwithstanding the foregoing the Graphic Designer shall be entitled to sue the Customer at his general place of jurisdiction.
16.3 If only the masculine form is used herein for describing natural persons it shall equally refer to women and men. If a specific person is referred to, the respective gender-specific form shall be used.
Place of jurisdiction: Kirchdorf an der Krems