GENERAL TERMS AND CONDITIONS
Peer Onlinemarketing – Benjamin Peer
1. validity, conclusion of contract
1.1 Peer Onlinemarketing – Benjamin Peer (hereinafter referred to as the “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions. These shall also apply to all future business relations, even if no express reference is made to them.
1.2 Deviations from these as well as other, supplementary agreements with the Customer shall only be effective if they are confirmed in writing by the Agency.
1.3 Any terms and conditions of the customer shall not be accepted unless otherwise expressly agreed in writing in the individual case. A special objection to the customer’s GTC by the agency is not required.
1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and purpose.
1.5 The Agency’s offers are subject to change and non-binding.
2. scope of services, order processing and customer’s duty to cooperate
2.1 The scope of the services to be provided results from the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol. Subsequent changes to the content of the service require written confirmation by the agency. Within the framework given by the customer, the agency has freedom of design in the fulfillment of the order.
2.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) shall be reviewed by the Customer and released within three working days of receipt by the Customer. If they are not released in time, they shall be deemed approved by the customer.
2.3 The Customer shall make available to the Agency in a timely and complete manner all information and documents required for the performance of the service. He will inform them of all circumstances that are of importance for the execution of the order, even if they only become known during the execution of the order. The customer shall bear the expenses incurred by the fact that work has to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
2.4 The Customer shall furthermore be obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties. The Agency shall not be liable for any infringement of such rights. If a claim is made against the Agency due to such an infringement, the Customer shall indemnify and hold the Agency harmless; the Customer shall compensate the Agency for all disadvantages incurred by the Agency as a result of a third party claim.
3. third-party services / commissioning of third parties
3.1 The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents for the performance of services that are the subject matter of the contract and/or to substitute such services (“Third Party Service”).
3.2 The commissioning of third parties within the scope of an external service shall be carried out either in its own name or in the name of the Customer, but in any case for the account of the Customer. The Agency will carefully select this third party and ensure that it has the required professional qualifications.
3.3 Insofar as the Agency commissions necessary or agreed third-party services, the respective contractors shall not be vicarious agents of the Agency.
4.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be deemed approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by the agency.
4.2 If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
4.3 If the Agency is in default, the Customer may only withdraw from the contract after having granted the Agency a grace period of at least 14 days in writing and this period has expired fruitlessly. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.
5. early dissolution
5.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days being set;
b) the customer continues, despite a written warning with a grace period of 14 days, to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate.
c) there are justified concerns about the creditworthiness of the customer and the customer does not make advance payments at the request of the agency nor does the customer provide suitable security prior to the agency’s performance;
d) bankruptcy or composition proceedings are instituted against the customer’s assets or an application for the institution of such proceedings is rejected for lack of assets to cover costs, or if the customer ceases to make payments.
5.2 The customer shall be entitled to terminate the contract for good cause without granting a grace period. Good cause shall be deemed to exist in particular if the Agency continues to violate essential provisions of this Agreement despite a written warning with a grace period of 14 days to remedy the violation of the Agreement.
6.1 Unless otherwise agreed, the Agency’s fee claim shall arise for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 5,000.00, or those that extend over a longer period of time, the agency is entitled to issue interim or advance invoices or to call for payments on account.
6.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in the individual case, the Agency shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law in the amount customary in the market.
6.3 All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Customer.
6.4 Cost estimates of the Agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated by the Agency in writing by more than 15%, the Agency will inform the Customer of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time discloses more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the Client from the outset.
6.5 The Agency shall be entitled to the agreed remuneration for all work performed by the Agency which, for whatever reason, is not carried out by the Customer.
The offsetting provision of Section 1168 of the Austrian General Terms and Conditions Act shall be excluded. Upon payment of the fee, the customer does not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed are to be returned to the agency without delay.
7. payment, retention of title
7.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the charging on of all cash expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration including all ancillary liabilities.
7.2 In the event of default in payment by the customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal action. In any case, this includes the costs of two reminder letters in the amount customary in the market as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
7.3 In the event of the Customer’s default in payment, the Agency may immediately declare due and payable all services and partial services rendered under other contracts concluded with the Customer. Furthermore, the Agency is not obligated to provide further services until the outstanding amount is paid. If payment in installments has been agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of term).
7.4 The Customer shall not be entitled to set off its own claims against claims of the Agency, unless the Customer’s claim has been acknowledged by the Agency in writing or has been established by a court of law.
8. intellectual property
8.1 All copyright and other rights to the services of the Agency shall remain with the Agency. Upon payment of the agency invoices, the customer acquires a right of use for the duration of the cooperation. The Agency shall inform the Customer how long and under which conditions copyrights of third parties may be used by the Customer.
8.2 After termination of the cooperation, the services of the Agency may only be used further with its express consent and against payment of compensation.
9. property right and copyright
9.1 All services provided by the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time – in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, the Customer may use the Agency’s services exclusively in Austria. The acquisition of rights of use and exploitation of services provided by the Agency requires in any case the full payment of the fees charged by the Agency for such services.
9.2 Changes or adaptations of the Agency’s services, such as in particular their further development by the Customer or by third parties working for the Customer, shall only be permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author.
9.3 The Agency’s consent is required for the use of the Agency’s services that goes beyond the originally agreed purpose and scope of use – regardless of whether this service is protected by copyright. The agency and the author shall be entitled to a separate appropriate remuneration for this.
9.4 For the use of the Agency’s services or advertising materials for which the Agency has prepared conceptual or design templates, the Agency’s consent shall also be required after the expiry of the Agency Agreement, irrespective of whether this service is protected by copyright or not.
9.5 For uses according to par. 4. The agency is entitled to 1. year after the end of the contract a claim to the full agency remuneration agreed in the expired contract. At 2nd year after the expiry of the contract only half of the remuneration agreed in the contract. From the 3rd year after the end of the contract, no agency fee is payable.
9.6 The Customer shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.
10.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising materials and in all advertising measures without the Customer being entitled to any remuneration for this.
10.2 Subject to the Customer’s written revocation, which is possible at any time, the Agency shall be entitled to refer to the existing business relationship with the Customer on its own advertising media and in particular on its Internet website by name and company logo (reference).
11.1 The Customer shall report any defects in writing without delay, in any case within eight days after delivery/service by the Agency, hidden defects within eight days after detection of the same, describing the defect; otherwise the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
11.2 In the event of justified and timely notice of defects, the Customer shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period of time, and the Customer shall allow the Agency to take all measures necessary to investigate and remedy the defects. The Agency shall be entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for the Agency. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In case of improvement it is incumbent on the client to carry out the transfer of the defective (physical) item at his own expense.
11.3 It shall be incumbent upon the Client to review the performance for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency is not liable for the accuracy of content if it has been provided or approved by the Client.
11.4 The warranty period shall be six months from delivery/service. The right of recourse against the agency pursuant to § 933b para. 1 ABGB shall expire one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.
12 Liability and product liability
12.1 In cases of slight negligence, liability on the part of the Agency for damage to property or pecuniary loss on the part of the Customer shall be excluded, irrespective of whether such damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party.
12.2 Any liability of the Agency for claims made against the Customer on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has fulfilled its obligation to provide information or if such obligation was not recognizable to it, whereby slight negligence shall not be damaging. In particular, the Agency shall not be liable for legal costs, the Customer’s own attorney’s fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; the Customer shall indemnify and hold the Agency harmless in this respect.
12.3 Claims for damages by the Customer shall expire six months after knowledge of the damage; in any case, however, after three years after the Agency’s infringement. Claims for damages are limited to the net order value.
13. data protection (optical highlighting according to the case law)
The Customer expressly agrees that the Agency may determine, store and process the data disclosed by the Customer (name, address, e-mail, credit card data, data for account transfer) for the purpose of fulfilling the contract and supporting the Customer as well as for its own advertising purposes with the aid of automated systems. The client agrees that electronic mail may be sent to him for advertising purposes until revoked.
14 Applicable law
The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the Customer shall be governed by Austrian substantive law, excluding the UN Convention on Contracts for the International Sale of Goods.
15 Place of performance and jurisdiction
15.1 The place of performance shall be the registered office of the Agency. In case of shipment, the risk shall pass to the customer as soon as the agency has handed over the goods to the carrier chosen by it.
15.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the Agency’s registered office in Innsbruck. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at the Customer’s general place of jurisdiction.