GENERAL CONDITIONS
Feld am See | last update 12 dec 2023
Roeljan Machiel Buijs BA Werbeagentur
Erlachweg 8-5
9544 Feld am See
Austria
Phone: +43 (0)664 4268867
GISA Number: 36049752
UID: ATU79602119
Article 1 Definitions
In these general terms and conditions, the following definitions shall apply:’Contractor’: the Contractor who concludes an agreement with the Principal. ‘Client’: the natural or legal person with whom the Contractor concludes an Agreement;
‘Agreement’: the agreement between Provider and Principal;
‘Order’: any order to perform services and assignments for the Client, including any amendment or supplement to the order in question, as well as all (legal) acts in preparation and execution thereof;
Products’: all items that are the subject of an Agreement such as, but not limited to, software, databases and websites as well as provisional and/or definitive designs, formats, etc. which are made available to the Principal by the Contractor, whether or not on a provisional basis, as an interim, partial or final result of the Agreement; ‘Services’: all services that are the subject of an Agreement such as, but not limited to, programming work, designing, developing, managing, servicing websites and databases, hosting, project management, advice regarding the promotion of websites, social media as well as all supplementary and supporting services in this area
‘Course’: course also includes education, training, workshop, etc.
Delivery’: the actual provision of the goods and services to be delivered to the Client;
Written’: this also includes by e-mail.
Article 2 Applicability of these terms and conditions
2.1 These conditions apply to all offers, quotations and agreements, to which these conditions have been declared applicable.
2.2 The applicability of general conditions used by Principal is hereby expressly rejected.
2.3 Deviations from these general conditions shall only apply if they have been expressly declared applicable in writing between Principal and Contractor.
2.4 If one or more provisions of these general conditions should at any time be wholly or partially void or voidable, the remaining provisions of these general conditions shall remain in full force. Contractor and Principal will then consult to agree on new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and meaning of the original provisions.
Article 3 Offers and formation of agreement
3.1 All offers and quotations of Contractor are without obligation, unless otherwise indicated by Contractor.
3.2 An agreement between Contractor and Client will only be concluded if Contractor has confirmed receipt of the tender accepted by Client in writing to Client within 14 days of receipt. Written acceptance also includes a confirmation sent to the Contractor by e-mail.
3.3 If the Client fails to accept the offer in writing, but nevertheless agrees that the Contractor will commence performance and/or the Client cooperates in performance, and/or the Contractor commences performance of the Agreement, the contents of the offer will be deemed to have been agreed.
3.4 The prices stated in an offer are in Euros and exclusive of VAT, unless otherwise stated.
3.5 Offers or quotations do not automatically apply to future orders.
3.6 The Client guarantees the accuracy and completeness of the information provided by or on behalf of the Client to the Contractor on which the Contractor bases its quotation.
Article 4 Performance of the Agreement
4.1 Contractor shall ensure that the performance of the assignment takes place in accordance with the requirements of due care and quality.
4.2 If and to the extent that, in the opinion of Contractor, the proper performance of the Agreement so requires, Contractor shall be entitled to have certain work performed by persons whom it appoints, including third parties.
4.3 The Client shall ensure that all data, which the Contractor indicates to be necessary or which the Client should reasonably understand to be necessary for the performance of the Agreement, shall be provided to the Contractor in good time.
4.4 If the data required for the performance of the agreement have not been provided to Contractor in good time, Contractor shall be entitled to suspend the performance of the agreement and/or to charge the Client for the costs resulting from the delay in accordance with the rates agreed with the Client or, in the absence thereof, in accordance with the customary rates.
4.5 Client accepts that work or performance will affect the agreed or expected time of completion of services and mutual responsibilities.
4.6 If it has been agreed that the Agreement will be performed in stages, Contractor may suspend the performance of those parts belonging to a subsequent stage until Client has approved in writing the results of the preceding stage.
4.7 If Principal fails to approve, but nevertheless agrees and/or cooperates in the execution of the next phases, the approval will be considered as given.
Article 5 Delivery times
5.1 A deadline specified by the Contractor for performance of the assignment is indicative, unless otherwise agreed in writing.
5.2 If the parties agree that the Agreement will be amended or supplemented, this may affect the time of completion of the performance. The Contractor will notify the Principal as soon as possible and provide a new indicative time period.
Article 6 Confidentiality
6.1 Both parties are obliged to keep confidential all confidential information they have obtained from each other or from other sources in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if it arises from the nature of the information.
Article 7 Intellectual property
7.1 All intellectual property rights to the documents developed under the Agreement or provided to the Client, such as reports, advice, designs, sketches, drawings, software, data carriers, etc. shall remain the property of Contractor. The Client will only receive the user rights granted to the Client by these General Terms and Conditions.
7.2 Contractor also reserves the right to use the knowledge gained by the execution of the work for purposes other than the execution of the agreement, to the extent that no confidential information is disclosed to third parties.
7.3 Contractor is free, with due regard for the Client’s interests, to use the works for its own publicity or promotion and/or to include them in its portfolio.
7.4 The Client is only permitted to use the delivered works and/or place them on a website if the invoice for these documents has been paid in full.
7.5 All documents provided by the Contractor, such as reports, advice, designs, sketches, drawings, software, data carriers, etc., are intended exclusively to be used by the Client in the context of the Agreement and may not be reproduced, disclosed or brought to the notice of third parties by the Client without the Contractor’s prior permission.
7.6 This right of use is non-transferable, non-exclusive and non-sublicensable, unless otherwise agreed in writing.
7.7 Unless otherwise agreed, the Assignment does not include conducting research into intellectual property rights, such as copyrights, trademark rights or portrait rights of third parties. The same applies to the possible forms of protection for the Client.
7.8 If the Client makes materials such as, but not limited to, images, stock footage, music, animation or visuals etc. available to the Contractor for the purpose of executing the Order, the Client must arrange the necessary permission, in the form of licenses, for the use of these materials.
7.9 The Client shall indemnify Contractor against claims regarding intellectual property rights on materials or information supplied by the Client, which are used by Contractor in the performance of the Order.
Article 8 Cancellation and Course Cancellation
8.1 Either party may at any time terminate the agreement in writing or in the same manner as the manner in which the agreement was concluded. In that case the parties must observe a notice period of at least 14 (fourteen) days.
8.2 Contractor reserves the right to cancel a Course due to lack of the required number of registrations. In principle the Principal will be notified of such cancellation no later than 1 (one) week prior to commencement of the Course. Any Course fees already paid will be refunded. If there are insufficient participants for a Course, Client may decide to participate in the Course at a higher Course fee. This will be discussed in consultation.
8.3 Cancellation by the Client is free of charge until 14 (fourteen) days prior to commencement of the Course at the latest, thereafter 100 (one hundred) % of the indebted Course fee will be charged.
Article 9 Fee
9.1 The parties may agree a fixed fee when the agreement is concluded.
9.2 If no fixed fee is agreed upon, the fee will be determined on the basis of hours actually worked. The fee will be calculated in accordance with Contractor’s usual hourly rates, valid for the period in which the work is performed, unless a different hourly rate has been agreed upon.
9.3 To the extent that a fixed price has been agreed for the provision of services, Client shall, upon request, inform Contractor in writing of the financial consequences of the additional work or performance. 9.4 If Contractor will perform work at the request of Client that falls outside the agreed performance, these will be performed by Contractor’s usual rates.
9.5 Any additional work resulting from an extension of the assignment, as well as any additional costs to be incurred in the context of the project not specified in the quotation, will be performed by Contractor after mutual agreement to be confirmed in writing or by email. 9.6 Contractor is entitled to charge an advance. If full payment of the advance is not made, Contractor is entitled, without prejudice to his other rights, to immediately suspend further performance of the contract.
9.7 For assignments with a duration of more than 1 month and/or with an invoice amount exceeding €3000, the costs due will be charged monthly.
Article 10 Payment
10.1 Payment must be made within 14 (fourteen) days after the invoice date, by transferring the amount due to account number
IBAN AT55 3944 2000 0506 9224 | BIC:RZKTAT2K442 in the name of: Buijs Roeljan Machiel
10.2 After the expiry of the payment term of 14 (fourteen) days after the invoice date, the principal will be in default; the principal will owe interest of at least 1% on the amount due from the moment of default.
10.3 In the event of the client’s liquidation, bankruptcy or suspension of payment, or if application of the debt rescheduling scheme is declared in respect of the client, the client’s obligations will fall due immediately.
10.5 If the client fails to fulfill any of its obligations or fails to do so on time, then, in addition to the agreed price and costs, all costs incurred in obtaining extra-judicial settlement shall be borne by the client, which costs shall also include the costs of preparing and sending reminders, making a settlement proposal and obtaining information. In any case, in the event of default, the client shall owe:
– over the first Euro 2500, with a minimum of €40, 15%
– over the next €2500 10%
– over the next €5000 5%
– over the next 190.000 3%
– over the remaining 1%
Article 11 Limitations of Liability
11.1 General Limitation: Except for damage caused by intent or deliberate recklessness of the Contractor (Roeljan Machiel Buijs BA Werbeagentur), the total liability of the Contractor on account of an attributable failure in the performance of the agreement or for any other reason, is limited to the compensation of direct damage up to a maximum of the amount of the price stipulated for that agreement (excluding VAT), with the understanding that the liability will never exceed €5000 and is in any case at all times limited to a maximum of the amount paid by the insurer in the relevant case.
11.2 Exclusion of Indirect Damages: Contractor’s liability for indirect damages such as consequential damages, lost profits, lost savings, reduced goodwill, damages due to business interruption, and the like is excluded.
11.3 Reliance on Client’s Data: Contractor is not liable for damage, of whatever nature, incurred because the Contractor has relied on incorrect and/or incomplete data provided by the Client.
11.4 Client’s Approval and Checks: Contractor is not liable for errors in the concept/design/product or the text/data, tweets, and other social media posts if the Client, in accordance with the provisions, has given its approval, or has been given the opportunity to conduct a check and has indicated that it does not require such a check. The Contractor is also not liable for errors in the concept/design/product or the text/data if the Client has not had a particular model, prototype, or proof performed and these errors would have been apparent in such a model, prototype, or proof.
11.5 Notice of Default: In the event of an attributable breach, the Contractor must first be given written notice of default, with a reasonable period within which to perform his/her obligations, or to rectify any errors, or to limit or remedy any damage.
11.6 Limitation for General Claims: The Contractor’s total liability to the Client for any claim arising out of or in connection with the Agreement, whether in contract, tort, or otherwise, shall be limited to the total fees paid by the Client to the Contractor for the services under the Agreement during the twelve (12) months preceding the date on which the claim arose.
11.7 Application to Third Parties: The limitations of liability contained in this article also apply to third parties engaged by the Contractor.
Article 12 Force majeure
12.1 Force majeure means circumstances which prevent performance of the obligation and which cannot be attributed to Contractor. These circumstances (if and insofar as they make fulfilment impossible or unreasonably difficult) shall include: 1) force majeure for the Supplier’s suppliers, 2) improper performance of obligations by suppliers prescribed by the Customer for the Supplier, 3) defects in objects, equipment, software or materials of third parties which the Customer has prescribed for the Supplier to use, 4) defects in the equipment, software or materials of third parties which the Customer has
the use of which has been prescribed by the Customer for the Supplier, 4) government measures, 5) power failure, 6) malfunctioning of the Internet
computer network or telecommunications facilities, 7) war, 8) occupation, 9) strike, 10) general transport problems and 11) the unavailability of one or more members of staff.
12.2 The Contractor shall also be entitled to invoke force majeure if the circumstance preventing further performance arises after the Contractor should have fulfilled its obligation.
12.3 During force majeure, the delivery and other obligations of the Contractor shall be suspended. If the period in which fulfilment of the obligations by Contractor is not possible due to force majeure lasts longer than 2 months, both parties shall be entitled to dissolve the agreement without any obligation to pay damages.
12.4 If Contractor has already fulfilled part of its obligations when the force majeure occurs, or can only partially fulfil its obligations, it shall be entitled to separately invoice the part already supplied or the part which can be supplied, and Principal shall be obliged to pay this invoice as if it were a separate contract. However, this does not apply if the part already delivered or the deliverable part has no independent value.
Article 13 Complaint period
13.1 Complaints about the work performed must be reported in writing by the Client to Contractor within 7 days of discovery, but no later than 30 days after completion of the work in question. If a defect and/or complaint is reported later, Principal is no longer entitled to repair, replacement or compensation.
13.2 If a complaint is justified, Contractor will still perform the work as agreed, unless this has meanwhile become pointless for Principal. The latter must be substantiated by Contractor. If the subsequent performance of the agreed services is no longer possible or useful, Contractor will only be liable within the limits of the liability clause 11 of these General Terms and Conditions.
13.3 Even if Principal lodges a complaint, his obligation to pay will remain.
Article 14 Dispute resolution
14.1 The parties will only appeal to the courts after they have made every effort to settle a dispute by mutual consultation.
14.2 The court in the district where Contractor has its registered office has exclusive jurisdiction to take cognizance of all disputes which may arise between Contractor and Client. Contractor shall, however, remain entitled to sue Client before the competent court of Client’s place of residence.
Article 15 – Dispute Resolution and Jurisdiction
15.1 Initial Dispute Resolution: In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such a solution within a period of 60 days, then, upon notice by either party to the other, disputes, claims, questions, or disagreements shall be settled by arbitration administered by Austrian law under its rules, or by an alternative dispute resolution (ADR) method agreed upon by the parties.
15.1 Arbitration: Any unresolved dispute arising under or in connection with this Agreement shall be submitted to arbitration under the rules of Austrian law by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be Klagenfurt. The arbitration shall be conducted in English/German language.
15.2 Jurisdiction Any agreement between Contractor and Client shall be governed by and construed in accordance with the laws of Austria.The parties agree that, notwithstanding the arbitration, the courts of Austria | Klagenfurt, shall have exclusive jurisdiction to hear any dispute or claim arising out of or in connection with this Agreement.
15.3 Costs of Arbitration: Each party shall bear its own costs in the arbitration proceedings. The fees and expenses of the arbitrator shall be shared equally by the parties unless the arbitrator’s decision includes a different cost allocation. However, the prevailing party in the arbitration shall be entitled to recover its reasonable attorney’s fees and costs.
15.4 Binding Arbitration: The decision of the arbitrator shall be final and binding on both parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction.
15.5 Confidentiality: The parties undertake to keep all aspects of the arbitration, including the proceedings, submissions, and the final decision, confidential, unless otherwise required by law.
Article 16 Amendment of the conditions
16.1 Contractor is authorized to make amendments to these terms and conditions. These amendments shall take effect at the announced time of entry into force.
16.2 Contractor shall timely send the amended conditions to Client. If no date of entry into force has been notified, the amendments will take effect vis-à-vis the Principal as soon as the Principal has been informed of the amendment.