1. Scope of application
1.1 innovation.rocks consulting gmbh (hereinafter referred to as the “Contractor”) concludes contracts only in writing in reliance on these General Terms and Conditions (hereinafter the “Terms”). The Terms are applicable to all business relationships between the Contractor and the customer (hereinafter referred to as the “Customer”), unless other terms and conditions were agreed in writing before the start of an assignment. Contractor and Customer are hereinafter also referred to as “the Parties”.
1.2 Deviating, contrary or supplementary general terms and conditions of the Customer are applicable only if these were expressly agreed in writing through an instrument signed by both Parties. Contractor shall not be deemed to have acknowledged Customer’s deviating terms and conditions by implied consent, even if Contractor provides an agreed service subject to no reservation after Customer has placed an order.
2.1 Unless the specific offer provides otherwise, Contractor’s offers/cost quotes are non-binding and without engagement
2.2 Legal declarations of the Parties are valid only if they were issued in writing and bear the authorized signatures of the Parties’ statutory officers or of a representative authorized by these officers in writing. All unilateral declarations issued by the Parties in respect of this contract shall be given in writing (including by e-mail and fax).
3. Customer’s data and materials
3.1 Any and all data and materials which Customer provides to Contractor shall be delivered in good and processable condition, free domicile and customs duties paid.
3.2 The application of Section 377 of the Austrian Commercial Code (UGB) (commercial obligation to notify defects) and of Section 928 of the Austrian Civil Code (ABGB) shall be contracted out for the benefit of the Contractor, and Customer shall warrant also for obvious defects. Contractor will inspect the materials upon delivery only at Customer’s express request, provided that Customer pays for all related costs. Our prices for processing do not include the costs for these inspections. Printed matter, paper and envelopes intended to be processed by mechanic means must be delivered with a 5% excess, small quantities of up to 20 items with an at least 10% excess.
3.3 Any extra costs incurred due to the Customer having delivered defective materials or due to other reasons such as incomplete delivery or partial deliveries will be billed at the hourly rates set out in Annex ./1 of these Terms.
3.4 Costs for data transmissions procured by the Customer shall be borne by the Customer. Contractor shall not be obliged to inspect and issue warnings in respect of data delivered or transmitted by the Customer itself or by a third party instructed by the Customer (see Section 3.1 of these Terms). Contractor shall not be liable for errors in and in respect of printing equipment or data directly or indirectly provided by the Customer, nor for errors in the end product which are due to deficient data deliveries. Should the Customer expressly request such an inspection, we will bill that and any correction separately based on the time spent (Annex ./1). Any templates (such as computer print-outs, digital proofs) underlying the Customer’s order shall not be binding. It is expressly pointed out that there may be differences in the end product’s colour that are caused by the different production processes. Should the Customer wish to see a binding template, we would have to produce a chargeable print-out, which requires an express written agreement between Customer and Contractor.
3.5 Contractor shall be liable for manuscripts, templates, films, data mediums and other documents provided to the Contractor up to 4 weeks after completion of the order. Other than that, Contractor does not accept any liability whatsoever for documents not reclaimed by the Customer. Contractor shall not be obliged to keep these documents and items fit for reuse beyond that deadline. Contractor will carefully treat the above items made available by the Customer until the delivery date. Contractor shall be liable only in case of intent or gross negligence.
4. Requirements to be met by materials provided by Customer
4.1 Customer accepts responsibility to ensure that form and content of materials provided to Contractor do not violate legal provisions and that Customer holds the copyrights and exploitation rights in respect of the works provided. Customer will hold harmless and indemnify Contractor for and against any breach of legal provisions, including but not limited to infringements of copyrights, moral rights and media rights.
4.2 Whenever Customer provides documents for work that are subject to third-party rights, Customer warrants to the Contractor that he has the right to that qualified transfer of use and, at Contractor’s request, shall provide appropriate documentary evidence, e.g. in the form of a corresponding copyright agreement. Contractor warrants to Customer that he will utilize such data, software or other documents for work only to execute the specific order.
5. Carrying out work
5.1 Contractor will execute Customer’s orders with the care and diligence of a prudent manager. Contractor reserves the right to have orders or parts of orders executed by sub-contractors.
5.2 Any additional work which is requested but is not part of the contract will be billed at hourly rates valid from time to time (Annex ./1). As a matter of principle, all special requests of the Customer (such as production of samples, advance deliveries, deliveries in tranches to different addresses) are billed separately. Subsequent changes on the initiative of the Customer (auto corrects, change of data etc) are billed to the Customer according to the time needed, including costs incurred by downtimes caused thereby.
5.3 In connection with the production of promotional materials and printed matter, Customer agrees that deliveries may involve the following customary excess or shortfalls: for orders of up to 1,000 units +/- 10 % tolerance of the ordered print run, for orders of 1,000 units or more +/- 5 % tolerance of the ordered print run.
5.4 In the absence of binding samples or written work instructions, Contractor will carry out processing in the usual manner to its best knowledge and belief.
6. Specimens, ready-to-print approval
6.1 Customer shall check specimens/proofs as to whether they meet all of the Customer’s requirements. Once the Customer confirms that the specimens/proofs are ready to print, he agrees with their further use, which is why claims cannot be asserted in reliance on shortcomings of a specimen/proof. Additional specimens/proofs made on the basis of the Customer’s change requests (author proofs) will be billed based on the expenses incurred.
7. Delivery dates, transaction terms
7.1 Indicated delivery times are generally only approximate times, unless fixed dates were explicitly confirmed in writing. Thus, Customer’s desired delivery dates become binding only if the Contractor has confirmed them in writing. The delivery period commences on the day on which Contractor possesses a signed acknowledgment of the order and all work documents and materials are clearly, completely and unambiguously available. Compliance with the delivery time requires the Customer to fulfil all duties of cooperation accepted in due time. Contractor shall not be required to observe the agreed time for delivery if an event of force majeure or any other unpredictable impediment within Contractor’s or its sub-suppliers’ control has occurred.
7.2 As a matter of principle, Contractor use a local postal service provider (e.g. Österreichische Post, Deutsche Post etc) to deliver and ship the Products, unless otherwise agreed with the Customer. Contractor does not warrant for the correctness of information provided by the appointed shipping company. Contractor is not obliged to check the postage limits calculated and postal regulations applied by the shipping company prior to processing or postal delivery. Prices for enveloping and shipping are applicable only to materials that can be flawlessly processed. Should difficulties arise during processing for which Customer is responsible, the resulting extra costs or hardship allowances will be billed to the Customer.
7.3 The amount of postage necessary for shipping must be credited to a bank account which Contractor notifies to Customer, specifying the purpose of the payment “Payment of postage and identification of order” or be paid in cash prior to the proposed delivery date. Except in the case described below, Contractor will not prepay postage under any circumstances. A final invoice on postage will be issued on the actual amount of postage, including but not limited to extra costs which the appointed shipping company may charge for overweight, along with postage paid. Contractor is no longer required to observe the agreed delivery date if Customer delivers the material with delay or pays postage too late.
7.4 When the goods are shipped by the Contractor, they shall be deemed to have been delivered when handed over to the postal reception facility or to another shipping company agreed with the Customer; once Contractor has handed over the deliverables to the shipping company, Contractor shall be deemed to have fulfilled its delivery obligation and the delivery shall be deemed to have been accepted by the Customer. Contractor may independently choose a postal reception facility to which it delivers the goods, unless a certain postal reception facility was agreed in writing.
7.5 Should orders comprise several partial projects, Contractor may make partial deliveries and issue partial invoices.
7.6 Customer will be notified if there is any residual material after processing. Any residual material not claimed for further use within one month will be returned by Contractor at its own free discretion as a carriage-forward delivery or will be destroyed on a chargeable basis.
8. Transport and packaging
8.1 The transport and return transport of Customer’s material and work results, if any, is carried out at Customer’s cost and risk. Contractor will purchase transport insurance only upon special written request. Prices include only the simplest form of packaging, should that be necessary at all. Material needed to procure special packaging requested by the Customer (gift wrapping, crates, boxes, edge protection etc) will be billed at customary market rates, and extra effort needed for that form of packaging at customary hourly rates. Contractor cannot take back packaging material such as reusable pallets.
9. Liability and warranty
9.1 Contractor warrants that the services agreed in the written contract are provided professionally and in due time. Contractor is liable for damages, for any reason whatsoever, only in case of intent and gross negligence.
9.2 Customer is obliged to notify defects by written notice to the Contractor pursuant to Section 377 of the Austrian Commercial Code (UGB) within a reasonable period of time, but no later than within eight days after delivery. In case of a complaint, Customer must allow Contractor to investigate the reasons for the reported complaint. Should an investigation show that the defect is beyond Contractor’s control, the costs of an investigation must be borne by the Customer. In the case of warranty, Contractor shall rectify the defect, deliver what is missing or, at its election, make subsequent deliveries. Customer may seek a reduction of the purchase price or withdraw from the contract if Contractor made two unsuccessful attempts to take corrective action within a reasonable grace period granted by the Customer or if any replacement is again inadequate.
9.3 Customer is entitled to seek a reduction of the purchase price or cancel a contract if defects for which Contractor is responsible cannot be rectified. However, Contractor shall only be liable for the net amount agreed for the contract or part of the contract (without postage), the execution of which has given rise to the defect or damage, and for not more than a maximum amount of EUR 7,000 (seven thousand Euros). To the extent permitted by law, any liability for consequential damage and compensation for materials used and postage shall be excluded. Contractor is not liable either for minor errors which do not significantly affect either the value or the fitness of the work.
9.4 Contractor’s liability for third-party products or services shall be confined to assignment of the claims the Contractor is entitled to recover from the supplier. The warranty claims described above enter into effect if the supplier cannot be held liable.
9.5 Contractor shall not be liable for consequential damage or lost profit due to orders not properly executed.
10. Data storage
10.1 Contractor is entitled to make duplicates or copies of the materials made available by Customer and of the data provided for the purpose of the performance of the contract.
10.2 Contractor will hold in trust data of the Customer which were expressly handed over for storage by virtue of a written agreement. Contractor undertakes to have such data available up to six months after the last order was placed or the contract termination date and to deliver such data only to the Customer or to a third party nominated by the Customer in writing. Contractor warrants to the Customer to utilize such data or results of processing only pursuant to the contract. A request to change or delete certain or several data can be made only on order of the Customer, an authorized party pursuant to Section 4 (3) of the Austrian Data Privacy Act (hereinafter “DSG”), or a third party nominated by him.
10.3 Customer guarantees that he has lawfully received any data transmitted to Contractor for storage and may process (pursuant to Section 4 no. 9 DSG), use (Section 4 no. 8 DSG) and transmit such data to third parties (such as the Contractor) (pursuant to Section 4 no. 12 DSG) pursuant to applicable legal provisions including but not limited to data privacy regulations. Contractor relies upon the correctness of that guarantee. Should that guarantee not be correct, Customer shall hold harmless and indemnify the Contractor for and against any resulting disadvantages.
10.4 Contractor may bill all costs connected with verifying and storing such data at agreed rates. Failing an agreement, customary hourly rates shall apply (Annex ./1). The agreed data storage obligation expires if the Customer does not pay the related costs within eight weeks after billing.
10.5 Other than that, Contractor is not obliged to store any data whatsoever, including data provided to the Contractor for non-recurring processing (e.g. for mailings).
11. License provisions, copyright and reference lists
11.1 The programs used for the Customer shall remain Contractor’s intellectual property. A compensation for development and adaptation costs does not limit Contractor’s right to further use.
11.2 The programs and software which Contractor makes available to Customer (hereinafter the “Programs”) shall not be deemed to have been sold or transferred. Customer has no right, in any case, to request the source code of Programs. Contractor shall remain the unrestricted owner of all rights thereto. Contractor simply grants Contractor a license to these Programs as follows:
Contractor grants Customer a non-exclusive, free license, unlimited in time, to use the delivered Programs only for internal purposes.
Customer may use the Programs made available, including the data basis and graphic data output (including but not limited to images, symbols or fonts), but may not change, reproduce, sell, rent out, lease, lend or otherwise make these available to third parties;
It is strictly prohibited for Customer to reverse engineer, decompile, disassemble or take any other measure in an attempt to discover the source code of the Programs; Contractor reserves all rights not explicitly mentioned above.
11.3 Should Contractor have been instructed to create/design a website, Contractor transfers to the Customer the copyrights and proprietary exploitation rights to that website. Customer acquires the copyrights and proprietary exploitation rights to a website as soon as Contractor has handed over to the Customer a data medium on which the website is stored and the Customer has fully paid the compensation owed pursuant to the contract. Contractor retains all copyrights and proprietary exploitation rights until the compensation owed by Customer is paid.
12. Internet services/web design
12.1 Contractor shall not be liable for the content of transmitted data. Contractor reserves the right to block certain publicly available services should legal provisions, such as the Austrian Telecommunications Acts or the Data Privacy Act so require.
12.2 Customer may change and process Contractor’s services only with Contractor’s express consent and, should the services be copyrighted, with the consent of the author. Contractor does not warrant for websites and programs that were later changed by Customer or third parties.
12.3 Customer assures that the registration, if any, of a domain does not infringe any third-party rights. Customer undertakes to hold harmless and indemnify Contractor for and against any claims which are asserted by third parties against Contractor due to an infringement of such rights (e.g. on the basis of trademark or competition law or general rights to their identity).
13. Term, termination and penalty
13.1 Unless expressly agreed otherwise, the contracts concluded between Contractor and Customer concerning continuous obligations shall be deemed to have been made for an indefinite time. Contracts concluded for an indefinite time can be terminated by either Party giving six months’ written notice at the end of each half calendar year (ordinary termination).
13.2 Should the contractual relationship between Contractor and Customer be an obligation to render a specific performance, it will always end once Customer has accepted the contractually agreed service from Contractor.
13.3 The Parties may terminate a contract for good cause; Contractor may terminate a contract for good cause if Customer does not fulfil its payment obligations in spite of a reminder within a 14-day grace period or breaches other material provisions of the contract (including provisions of these Terms). Both Parties are also entitled to give extraordinary notice of termination if insolvency proceedings are opened in respect of the other Party’s assets or if a request to open insolvency proceedings is rejected for lack of assets to cover the costs, or if the respective other Party is permanently unable to fulfil its service obligations. Notice of extraordinary termination must be given by registered letter which explains the reason for termination.
13.4 Contractor is entitled to payment of a penalty if Customer commits a serious breach of contract (including the provisions of these Terms), i.e. if Customer is in delay with delivering materials or data which Contractor needs to perform the contract (Section 2. of these Terms) in spite of a reminder within a 14-day grace period, and if Customer cancels an order already placed for any reason whatsoever. That penalty amounts to 75 % of the compensation which accrues or would accrue until the next possible ordinary contract termination date (expiry date of a fixed-term contract or date of ordinary termination of an unlimited contract in compliance with termination periods and termination dates). Contractor’s right to recover that penalty does not affect any other rights, such as the right to extraordinary notice of termination or compensation of damage, to which Contractor is entitled.
14. Invoicing and compensation
14.1 The prices stated in the order confirmation or, or if no separate order confirmation was issued, those stated in offers/cost quotes or stated for hourly rates shall be decisive (Annex ./1). Unless Section 7. of these Terms provides otherwise, packaging and shipping charges are billed separately.
14.2 All prices are net prices denominated in euros, exclusive of statutory value added tax, due for payment immediately after receipt of an invoice, unless otherwise agreed in writing. Unless Section 6. of these Terms provides otherwise, labour and material is invoiced after the Customer has accepted Contractor’s contractually agreed service. Late payments are subject to default interest at a rate of 8% above the base interest rate. Furthermore, Customer shall reimburse the costs for appropriate legal action (costs for intervention, legal and court fees etc) to Contractor.
14.3 Contractor has a right of retention pursuant to Section 369 UGB.
15. Data secrecy, confidentiality and reference
15.1 Contractor warrants to observe the data secrecy pursuant to the Austrian Data Privacy Act (DSG).
15.2 Contractor is obliged to keep confidential any information and documents received in connection with the contractual relationship which are marked as confidential or could constitute Customer’s business or trade secrets in other circumstances, and Contractor shall neither record, nor disclose or exploit these, unless this is necessary to achieve the purpose of the contract. This applies in particular to any ideas and concepts Contractor becomes aware of during the development phase or cooperation. Contractor shall reach adequate contractual agreements with its employees and/or subcontractors to ensure that they do not use for themselves and/or make unauthorized records of and/or pass on these business and trade secrets.
15.3 It is explicitly stated that Customer agrees that Contractor is allowed to name Customer as a reference, unless the confidentiality obligation pursuant to Section 15.2 applies. Furthermore, Contractor may use the lettering “innovation.rocks” in a legible form on all products, promotional materials, promotional campaigns and also on all websites created for the Customer without having to pay a separate compensation.
16. Venue and choice of law
16.1 All disputes arising from this contract, including disputes regarding its existence or non-existence, shall be referred to the court having subject-matter jurisdiction at Contractor’s registered office.
16.2 The legal relationships between Contractor and Customer shall be governed by and construed in accordance with Austrian law, to the exclusion of the conflict of law rules of international private law. The Parties expressly agree that the UN Sales Convention shall not be applicable.
17. Final provisions
17.1 The contract and Contractor’s Terms comprise the entire understanding between the Parties. No oral side agreements exist. Side agreements and subsequent amendments or modifications of the contract shall be valid only if Contractor has confirmed these in writing.
17.2 Should any term of the contract or of these Terms be or become invalid, the remaining terms of contracts concluded or of these Terms will not be affected. The entirely or partially invalid term will be replaced by a term that closest reflects the economic success of the invalid term.
Vienna, September 2012