GENERAL TERMS AND CONDITIONS
Nikolaus Kleemann M.Sc.
Prinz Eugen-Strasse 74/1/29, 1040 Vienna, Austria
1. Validity, conclusion of contract
1.1 Nikolaus Kleemann M.Sc. (hereinafter referred to as “NK”) provides its services exclusively based on the following General Terms and Conditions (GTC). These apply to all legal relationships between NK and the Customer, even if no explicit reference is made to them. The GTC are exclusively applicable to legal relationships with entrepreneurs, thus B2B.
1.2 The version valid at the time of the conclusion of the contract is authoritative in each case. Deviations from these as well as other supplementary agreements with the Customer are only effective if they are confirmed in writing by NK.
1.3 Possible terms and conditions of the Customer, even if known, are not accepted, unless explicitly agreed otherwise in writing in individual cases. NK expressly objects to the customer’s GTC. No further objection to the Customer’s GTC by NK is required.
1.4 Amendments to the GTC shall be notified to the customer and shall be considered as agreed if the customer does not object to the amended GTC in writing within 14 days; the customer shall be expressly informed of the significance of the silence as well as of the specifically amended clauses in the notification. This fiction of consent does not apply to the amendment of essential service contents and charges.
1.5 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 the meaning and purpose.
1.6 NK’s offers are subject to change and non-binding.
2. Protection of concepts and ideas
If the potential customer has already invited NK in advance to prepare a concept and if NK complies with this invitation before conclusion of the main contract, the following provision shall apply:
2.1 Through the invitation and the acceptance of the invitation by NK, the potential client and NK already enter a contractual relationship (“Pitching Contract”). This contract is also based on the GTC.
2.2 The potential customer acknowledges that NK already provides cost-intensive preliminary services with the concept development, although he has not yet assumed any performance obligations himself.
2.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, as far as these reach the level of a work. The potential client is not permitted to use or edit these parts without NK’s consent, based on copyright law alone.
2.4 The concept also contains relevant ideas that do not reach the level of a work and thus do not benefit from the protection of copyright law. These ideas form the beginning of every creative process and can be defined as the spark that ignites everything that is later produced and thus as the origin of the marketing strategy. Therefore, those elements of the concept which are unique and give the marketing strategy its individual character are protected. In particular, keywords, texts, graphics and illustrations, resources, etc. are considered to be an idea within the meaning of this agreement, even if they do not reach the level of a work.
2.5 The potential customer agrees to refrain from commercially exploiting or having commercially exploited or using or having used these creative ideas presented by NK within the framework of the concept outside the corrective of a main contract to be concluded at a later date.
2.6 If the potential customer is of the opinion that ideas were presented to him by NK which he had already come up with before the presentation, he must notify NK of this by e-mail within 14 days of the day of the presentation, citing evidence which allows a time allocation.
2.7 In the opposite case, the contracting parties shall assume that NK has presented the potential customer with an idea that is new to him. If the idea is used by the client, it is to be assumed that NK has been made meritorious in the process.
2.8 The potential customer may release itself from its obligations under this point by paying a reasonable compensation plus 20% VAT. The release shall only come into effect after NK has received payment of the indemnity in full.
3. Scope of services, order processing and cooperation obligations of the client
3.1 The scope of the services to be provided results from the service description in the contract or any order confirmation by NK, as well as any briefing protocol (“offer documents”). Subsequent changes to the service content require written confirmation by NK. Within the framework specified by the customer, NK has freedom of design in the fulfilment of the order.
3.2 All services provided by NK (in particular all concepts, drafts and electronic files) must be reviewed by the Customer and approved by him within three working days of receipt by the Customer. After expiry of this period without feedback from the customer, they shall be considered approved by the customer.
3.3 The Customer shall make available to NK in a timely and complete manner all information and documents required for the performance of the service. He shall inform NK of all circumstances that are of importance for the performance of the order, even if these only become known during the performance of the order. The Customer shall bear the expenses incurred by the fact that work must be repeated or is delayed as a result of his incorrect, incomplete or subsequently changed information from NK.
3.4 The Customer is furthermore 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 (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. NK shall not be liable in the event of merely slight negligence or after fulfilment of its duty to warn – in any case in the internal relationship with the Customer – due to an infringement of such third-party rights by documents made available. If a claim is made against NK by a third party due to such an infringement of rights, the Customer shall indemnify and hold NK harmless; the Customer shall compensate NK for all disadvantages incurred by NK due to a claim made against it by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support NK in the defense against any claims by third parties. The customer shall provide NK with all documents for this purpose without being requested to do so.
4. External services / Commissioning of third parties
4.1 NK is entitled, at its own discretion, to carry out the performance itself, to make use of competent third parties as vicarious agents for the performance of contractual services and/or to substitute such services (“Third Party Services”).
4.2 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, the latter after prior information to the Customer. NK will carefully select this third party and ensure that it has the necessary professional qualifications.
4.3 The customer shall enter obligations with regard to third parties who have been named to the customer and who extend beyond the term of the contract. This also expressly applies in the event of termination of the contract for good cause.
5.1 Unless explicitly agreed as binding, stated delivery or performance deadlines are only approximate and non-binding. Binding agreements on deadlines must be recorded in writing or confirmed by NK in writing.
5.2 If NK’s delivery/service is delayed for reasons for which he is not responsible, such as events of force majeure and other unforeseeable events which cannot be averted by reasonable means, the performance 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 Customer and NK are entitled to withdraw from the contract.
5.3 If NK is in delay, the Customer may only withdraw from the contract after having granted NK a reasonable grace period of at least 14 days in writing and this period has expired without result. Claims for damages by the customer due to non-fulfilment or delay are excluded, except in the case of proof of intent or gross negligence.
6. Early termination
6.1 NK is entitled to terminate the contract with immediate effect for good cause. An important reason exists 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 client continues to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are justified concerns regarding the creditworthiness of the Customer and the Customer does not make advance payments at NK’s request or provide suitable security prior to NK’s performance.
6.2 The customer is entitled to terminate the contract for good cause without granting a grace period. Good cause shall be deemed to exist in particular if NK continues to breach material provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
7.1 Unless otherwise agreed, NK’s fee claim arises for each individual service as soon as it has been rendered. NK is entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 10,000, or those extending over a longer period of time, NK is entitled to issue interim or advance invoices or to call for payments on account.
7.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, NK shall be entitled to a fee in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.
7.3 All services provided by NK that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by NK shall be reimbursed by the Client.
7.4 NK’s cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the costs estimated by NK in writing by more than 15%, NK will inform the Customer of the higher costs. The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time informs NK of less expensive alternatives. In the case of a cost overrun of up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the client from the outset.
7.5 If the customer unilaterally changes or discontinues work commissioned without NK’s involvement – notwithstanding the ongoing other support provided by NK – the customer shall remunerate NK for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on NK’s part, the customer must also reimburse NK for the entire fee agreed for this order (commission), whereby the imputation remuneration of § 1168 AGBG is excluded. Furthermore, NK shall be indemnified and held harmless regarding any claims of third parties, in particular of NK’s contractors. Upon payment of the fee, the customer shall not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed shall be returned to NK without delay.
8. Payment, reservation of ownership
8.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special terms of payment are agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenditures. The goods delivered by NK remain the property of NK until full payment of the fee including all ancillary liabilities.
8.2 In the event of default of 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 NK for the reminder and collection expenses incurred, to the extent that they are necessary for appropriate legal prosecution. This shall in any case include the costs of two reminders in the customary amount of currently at least € 20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected by this.
8.3 In the event of default of payment by the Customer, NK may immediately call due all services and partial services rendered under other contracts concluded with the Customer.
8.4 Furthermore, NK is not obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay the fee remains unaffected by this.
8.5 If payment in instalments has been agreed, NK reserves the right to demand immediate payment of the entire outstanding debt if partial amounts or ancillary claims are not paid on time (forward loss).
8.6 The Customer is not entitled to set off its own claims against NK’s claims unless the Customer’s claim has been recognised by NK in writing or has been established by a court.
9. Ownership and copyright
9.1 All services provided by NK, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, remain the property of NK, as do the individual workpieces and design originals, and may be reclaimed by NK at any time – in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, the customer may use NK’s services exclusively in Austria. The acquisition of rights of use and exploitation of the Agency’s services shall in any case require full payment of the fees charged by NK for them. If the customer already uses NK’s services before this time, this use shall be based on a loan relationship that can be revoked at any time.
9.2 Modifications or adaptations of NK’s services, in particular their further development by the Customer or by third parties working for the Customer, are only permitted with the explicit consent of NK and – to the extent to which the services are protected by copyright – of the author. The release of all so-called “open files” is thus expressly not part of the contract. NK is not obliged to hand them over. I.e. without contractual assignment of the rights of use also for “electronic works”, the Client has no legal claim to them.
9.3 NK’s consent is required for the use of NK’s services which goes beyond the originally agreed purpose and scope of use – irrespective of whether this service is protected by copyright. NK and the author shall be entitled to a separate appropriate remuneration for this.
9.4 NK’s consent is also required for the use of NK’s performance after the expiry of the contract, irrespective of whether this performance is protected by copyright or not.
9.5 In the first year after the end of the contract, NK shall be entitled to the full remuneration agreed in the expired contract for uses according to para. 4. In the 2nd or 3rd year after expiry of the contract, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no remuneration shall be paid.
9.6 The Customer shall be liable to NK for any unlawful use in the double amount of the fee appropriate for such use.
10.1 NK is entitled to refer to NK and, if applicable, to the originator on all advertising media and in all measures, without the Customer being entitled to a claim to remuneration for this.
10.2 Subject to the Customer’s written revocation, which is possible at any time, NK is entitled to refer to the existing or former business relationship with the Customer on its own advertising media and in particular on its Internet website with the name and company logo (reference).
11.1 The Customer shall report any defects immediately in writing, in any case within eight days after delivery/service by NK, hidden defects within eight days after recognition of the same, describing the defect; otherwise, the service shall be deemed to have been 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 a justified and timely notice of defects, the Customer shall be entitled to improvement or replacement of the delivery/service by NK. NK shall remedy the defects within a reasonable period of time, whereby the customer shall enable NK to take all measures necessary to examine and remedy the defects. NK is entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for NK. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be the responsibility of the Customer to carry out the transfer of the defective (physical) item at its own expense.
11.3 It is also the Client’s responsibility to check the service for its legal admissibility, in particular under competition, trademark, copyright and administrative law. NK is only obliged to carry out a rough check of legal admissibility. NK shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilment of any duty to warn the Customer, if such content was specified or approved by the Customer.
11.4 The warranty period is six months from delivery/service. The right of recourse against NK pursuant to § 933b para. 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to defects. The presumption provision of § 924 AGBG is excluded.
12. Liability and product liability
12.1 In cases of slight negligence, NK’s liability and that of its employees, contractors or other vicarious agents (“people”) for property damage or financial loss of the Customer shall be excluded, irrespective of whether the 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 injured party must prove the existence of gross negligence. Insofar as NK’s liability is excluded or limited, this shall also apply to the personal liability of its “people”.
12.2 Any liability of NK for claims made against the Customer on the basis of the service provided by NK (e.g. measure) is expressly excluded if NK has complied with its duty to inform or if such a duty was not apparent to it, whereby slight negligence does not harm. In particular, NK shall not be liable for litigation costs, the Customer’s own legal 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 NK 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 NK’s act of infringement. The amount of claims for damages shall be limited to the net order value.
13. Applicable law
The contract and all mutual rights and obligations derived therefrom as well as claims between NK and the Customer shall be governed by Austrian substantive law, excluding its conflict of law rules and excluding the UN Convention on Contracts for the International Sale of Goods.
14. Place of performance and jurisdiction
14.1 The place of performance is the registered office of NK. In the event of shipment, the risk shall pass to the Customer as soon as NK has handed over the goods to the carrier selected by it.
14.2 The court with subject-matter jurisdiction for NK’s registered office is agreed as the place of jurisdiction for all legal disputes arising between NK and the Customer in connection with this contractual relationship. Notwithstanding the foregoing, NK is entitled to sue the Customer at its general place of jurisdiction.
14.3 As far as in this contract terms referring to natural persons are only mentioned in the masculine form, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.