Terms and conditions
of sternpunkt.internetideen OG
Table of Contents
- Application, Conclusion of Contract
- Protection of Ideas and Concepts
- Scope of Service, Order Processing and Customer's Cooperation Duties
- External Services / Third Party Commissioning
- Social Media Channels
- Early Termination
- Professional Fees
- Payment, Retention of Title
- Ownership and Copyright
- Liability and Product Liability
- Confidentiality and Data Protection
- Web Hosting
- Proper Law
- Severability Clause
- Place of Performance and Jurisdiction
01 | Application, Conclusion of Contract
1.1 | These General Terms and Conditions constitute the exclusive basis for all business relationships between sternpunkt.internetideen OG, Technoparkstr. 4, A–5310 Mondsee (in the following referred to as "agency") and its clients. They apply to all legal relationships between the agency and its clients, even if they are not explicitly referenced.
1.2 | The General Terms and Conditions are applied in the respective current german version at the time of contract conclusion. Deviating agreements only apply if they have been approved by the agency in written form.
1.3 | Possible terms and conditions of the client, even with knowledge thereof, are not accepted unless the agency has explicitly agreed upon them. The agency disagrees upon the terms and conditions of the client explicitly. Further appeal against the terms and conditions of the client is not necessary.
1.4 | Changes and/or enhancement of these terms and conditions become effective with the online publication under the domain http://www.sternpunkt.at/agb and shall be deemed to be binding unless the client disagrees in written form within 14 days after publication. The significance of the client's tacit approval is pointed out explicitly.
1.5 | Should individual provisions be or become ineffective, the validity of the remaining provisions and underlying contracts shall not be affected thereby. The ineffective term is replaced by an effective clause, with a similar spirit and purpose.
1.6 | All offers of the agency are not-binding and noncommittal.
02 | Protection of Ideas and Concepts
In case the potential client invites the agency to present a concept prior to assigning a principal contract, the following legal provisions apply:
2.1 | By accepting the invitation, a contractual relationship is established between the client and the agency ("pitching contract"). The contract is governed by this general terms and conditions.
2.2 | The potential customer acknowledges, that the agency renders a cost-intensive advanced performance, although the client itself has not yet assumed any contractual obligations.
2.3 | Copyright protection to the fullest extend allowed by law apply the concept depending on originality and the creative element of the work. Without the written consent of the agency, any use or alteration of the concept or its parts is prohibited and protected by copyright law.
2.4 | Furthermore, the concept may contain advertising-relevant ideas that are not protected by copyright law. This ideas emerge at the beginning of every creative process and can be defined as the bright spark for further ideas as well as the origin of a marketing strategy. Thus, elements of the concept, which are unique and are the characteristic basis for the strategy, are protected. According to this agreement, especially advertising slogans, advertising texts, graphics and illustrations, advertising material and so forth are defined as idea, even if they are not protected by copyright law.
2.5 | The potential client obliges himself to refrain from utilizing and exploiting any of the presented concepts and advertising ideas without entering into a contract with the agency.
2.6 | In case the potential client is of the opinion that the agency presented ideas the client was already aware of, the client shall inform the agency within 14 days after the presentation in written form (E-Mail is applicable) by instancing means of evidence that allow for temporal assignment.
2.7 | Should this not be the case, both contracting parties assume that the agency presented new ideas to their potential customers. Should the customer wish to use these ideas, this utilization leads to a completed contract with the agency.
2.8 | In case the potential customer wishes not to comply with these obligations, a release through the payment of an appropriate compensation plus 20% VAT. The release becomes effective after receipt of payment.
03 | Scope of Service, Order Processing and Customer's Cooperation Duties
3.1 | The scope of the adducting service is based on the performance specification, stated in the contract with the agency, or in form of an order confirmation by the agency, as well as on the briefing protocol ("offer documents"). Subsequent changes or additions to the performance specification have to be approved by the agency in written form. Within the range defined by the customer, the agency is granted design freedom while fulfilling the contract.
3.2 | All services of the agency (especially all drafts, sketches, final artworks, copies, color proofs and electronic data) have to be reviewed by the customer. The customer has to release these documents within five business days after receipt. In case, clearance of the documents is not received on time, the agency classifies the documents as approved.
3.3 | The customer supplies all information and material that is required by the agency to fulfill the defined services on time an in complete form. The client informs the agency about all circumstances that are relevant for conducting the contract, even if they occur during conduction. The client compensates increased expenses that are caused by insufficient, incomplete oder subsequent changes and that force the agency to repeat tasks or cause a delay.
3.4 | The customer provides all information in an electronically usable form. The agency informs the customer about suitable file formats. In case information is provided in other forms, necessary conversions are invoiced separately.
3.5 | Furthermore, the customer is obliged to verify all documents he provides to the agency (pictures, logos etc.) for compliance by law, especially copyright and trademark law as well as other third party rights ("rights clearing"), and guarantees that no third party rights apply to these documents and that it is applicable by law to use these documents for the desired purpose. The agency is not liable for slight negligence or after caring out it's warning duty, only in the internal relationship with the customer, or for rights infringements of third party material supplied by the customer. In case third parties claim a violation of rights against the agency, the customer has to indemnify the agency against any and all claims. The customer has to make up for any disadvantages the agency suffered through the claim of third parties, especially the costs for an appropriate legal representation. The customer is obliged to support the agency in the defense of possible claims of third parties. Therefore, the customer provides all necessary corresponding documents.
04 | External Services / Third Party Commissioning
4.1 | The agency is authorized to provide services by itself, utilize competent third-party contractors to fulfill the conventionary services or to substitute these services („third-party services“).
4.2 | Task may be delegated to third-party contractors on behalf of the agency itself or on behalf of the customer. The agency selects third-party contractors carefully and ensures their professional qualification.
4.3 | As far as the agency commissions necessary or agreed services, the individual supplier are not vicarious agent of the agency.
4.4 | The customer is financially responsible for all obligations towards third parties whose duration extends the duration of the contract with the agency. This also applies expressly in case of contract termination due to important reason.
05 | Social Media Channels
Because of the current valid terms of usage and the simple possibility for every user to claim right infringements and to obtain the removal of contents, the agency cannot guarantee that assigned campaigns are available at any time.
06 | Deadlines
6.1 | The agency can not be held liable for indicated delivery or service dates, unless it was agree upon them in written form. Indicated delivery and service dates are regarded as approximately and non-binding unless the agency has specifically agreed upon them. Binding date arrangements have to be confirmed in written form by the agency.
6.2 | In case the delivery / service of the agency is delayed due to reasons beyond its control, e.g. force of majeure and other unpredictable events that could not have been prevent with reasonable measures, the performance obligations are postponed for the duration and the extend of the event and deadlines are extended accordingly. In case such delays last more than three months, the client and the agency are entitled to withdraw from the contract.
6.3 | In case the agency falls behind schedule, the client is entitled to withdraw from the contract after a period of grace of at least 30 days has elapsed without success. Claims for damages due to non-fulfillment or delay are excluded, except the customer provides evidence of intent or serious negligence.
07 | Early Termination
7.1 | The agency is entitled to dissolve the contract due to important reason and with immediate effect. Important reasons include especially in case
1. it is impossible to conduct services for reasons that are attributable to the customer and that are still delayed after a grace period of 14 days
2. the customer repeatedly violates key obligations, even after a written warning and a grace period of 14 days, e.g. payment of a due invoice or duty of cooperation
3. legitimate concerns regarding the solvency of the customer arise and the customer is neither willing to make an advanced payment nor provide other suitable securities on the agency's request.
7.2 | The client is entitled to dissolve the contract due to important reason without granting a grace period. Important reason especially includes in case the agency breaches provisions of the contract repeatedly after having been granted a grace period of 14 days to solve the breach of contract.
7.3 |In case of the unilateral cancellation of the commissioned work through the customer – regardless of ongoing or other support –, the customer has to compensate for the provided services according to the remuneration agreement and has to reimburse all costs. Provided the cancellation is not caused due to grossly negligent or intentional violation, the customer has to refund the agency the agreed fee for the commissioned work completely.
08 | Professional Fees
8.1 | Unless otherwise agreed, the fee claim of the agency starts directly after a service has been performed. In order to cover costs, the agency is entitled to demand an advanced payment. Starting with an order volume of an annual budget higher than € 10.000, – or for projects that extend over a longer period, the agency is entitled to state interim or advanced billing or to demand payment on account.
8.2 | Professional fees are stated as net amount plus value added tax as governed by law. In the absence of a specific agreement, the agency is entitled to claim a fee in the height of the usual market price for the rendered service and the granting of the right of use according to copyright and general labeling rights.
8.3 | All services of the agency that are not expressively compensated by a remuneration are separately compensated. The customer refunds all cash expenditure of the agency.
8.4 | Cost estimations of the agency are non-binding. In case the actual cost exceed the written stated costs of the agency by 15%, the agency informs the customer about the increased expenditure. The expenditure increase is considered as approved if the customer does not contradict in written form within three days and without stating more cost-effective alternatives. In case costs only exceed up to 15%, stating an indication is not necessary. Exceedance of cost estimates is understood as approved by the customer.
8.5 | For all services of the agency that are not executed by the customer for whatever reason, the agency is entitled the stipulated remuneration. Amending the provision of the income according to § 1168 AGB is excluded. With payment of remuneration, the customer does not purchase usage rights. Unimplemented concepts, drafts and other corresponding documents have to be returned to the agency immediately.
09 | Payment, Retention of Title
9.1 | Remunerations are due with receipt of invoice and without discount, except when otherwise stipulated. This also applies to passing cash expenses and other costs. Goods delivered by the agency remain in the possession of the agency until the time of complete payment. This includes side liabilities.
9.2 | In default of payment by the customer, statutory default interest in customary amount apply. Furthermore, in default of pay, the customer commits itself to pay for reminder fees and collection expenses, as far as they are necessary for prosecution. In any case, this comprises the costs for two written reminders in normal market amount of currently € 20, – per reminder as well as the costs for commissioning a lawyer to draft another reminder. Enforcement of further rights and claims shall remain unaffected.
9.3 | In case of payment default by the customer, the agency is allowed to declare all services and partial performances as stated in the concluded contracts due.
9.4 | Furthermore, the agency is not obliged to perform any further services until the outstanding balance is settled (right of retention). The obligation of remuneration shall remain unaffected.
9.5 | In case installments have been stipulated, the agency reserves the right to demand the immediate payment of all open debts and accessory claims in case of payment default of partial rates (loss of deadlines).
9.6 | The customer is not entitled to balance open claims with counter claims, except the claim of the customer has been approved in written form by the customer or has been acknowledged by court.
10 | Ownership and Copyright
10.1 | All services of the agency including services within the scope of presentations (e.g. suggestions, ideas, sketches, drafts, scribbles, final drawings, concept, negatives and slides), even in parts, as well as single work pieces, draft originals and working files stay in the possessions of the agency and can be reclaimed by the agency any given time, especially in case of contract termination. Through payment, the client acquires the right of usage for the intended purpose. In absence of different agreements, the client is entitled to use the services only in Europe. The acquisition of usage and exploitation rights of services of the agency requires the complete payment of the fee stated by the agency in any given case. In case the customer uses the services of the agency before payment, usage is based on loan and can be withdrawn any given time. The acquisition of working files for the purpose of further processing (even through third parties) is possible after a separated payment of € 5.000, unless stated otherwise in written form.
10.2 | Changing or processing services of the agency, especially the further development through the customer or third party contractors, are only possible with explicit approval of the agency and, as far as these services are protected by copyright law, the respective copyright holder.
10.3 | For the utilization of services originally conducted by the agency that exceeds the agreed purpose, the consent of the agency is necessary, regardless of the fact that the service may be protected by copyright. For this utilization, the agency is entitled a separate remuneration.
10.4 | For the usage of services by the agency, respectively of advertising material, for which the agency has developed conceptual or artistic templates, the consent of the agency is required, even after expiration of contract and regardless wether these services are protected by copyright.
10.5 | For the usage according to §10.4, within the first year after expiration of contract, the agency is granted full entitlement in stipulated amount. Within the second and third year after contract expiration, the agency is granted half resp. a third of the stipulated remuneration. Beginning with the fourth year after contract termination, no remunerations have to be paid.
10.6 | The client is liable for any unlawful usage in the effect of the doubled amount of costs stated for the respective usage.
11 | Labeling
11.1 | The agency is entitled to reference the agency and a respective author on all advertising material and advertising measures without resulting in a remuneration claim through the customer.
11.2 | The agency is authorized to state the name and company logo of the customer on all advertising material, especially on its website, to indicate existing or former business relations with the customer free of charge.
12 | Warranty
12.1 | The customer has to state possible deficiencies immediately, in any case within 8 days after delivery / service provision through the agency. Hidden defects have to be stated within 8 days after recognition. Deficiencies have to be stated in written form. Otherwise, services are obtained as approved. In any case, enforcement of warranty claims and compensation for damages is impossible.
12.2 | In case of justified and punctual notification of defect, the customer is granted the right of improvement or exchange of the delivered goods or provided services by the agency. The agency is going to repair defects within an appropriate period whereby the customer is going to enable all necessary investigations and required measures. The agency is entitled to refuse improvements in case of impossibility or disproportionate expenses. In this case, the customer has aright of abatement or transformation. In case of improvement, it is up to the customer to implement these or to transmit physical goods on his own expenses.
12.3 | Verification of services in terms of legal aspects, especially competitive, trademark, copyright and administrative law is up to the customer. The agency is only obliged to execute a rough examination. The agency cannot be held liable for the legal admissibility in case of slight negligence or after fulfilling its warning duties against the customer if they have been stated or approved by the customer.
12.4 | The warranty period ends after six month of delivery / service provision. Any right to recourse for liability against the agency according to § 993 Abs 1 ABGB ends after one year of delivery / service provision. The client is entitled to withhold payments in case of deficiencies. The presumption rule according to § 924 ABGB is excluded.
13 | Liability and Product Liability
13.1 | In cases of slight negligence, liability of the agency or its employees, subcontractors or vicarious agents ("people") for material or actual loss are excluded, no matter wether this concerns direct or indirect damages, loss of profit or consequential damages, damages due to delay, impossibility, positive breach, negligence when entering into contract or because of insufficient or incomplete services. The customer is obliged to demonstrate gross negligence. Limitation of liability also applies to the personal liability of its "people".
13.2 | Any liability of the agency for claims that are raised to the customer because of services provided by the agency (e.g. advertising measures) is explicitly excluded given the agency met it's reference requirements or in case it was impossible to recognize such whereby slight negligence does not harm. The agency is especially not liable for legal costs, costs for lawyers of the customer or costs that arise through publication of judgment or any other claims of third parties. Claims arising from liabilities and other obligations cannot be transferred to the agency.
13.3 | Claims for damage by the customer terminate within six months after knowledge, in any case three years after the infringing act of the agency. Damage claims are limited to the amount of the net contract value.
13.4 | The agency is not liable for defects that are caused by open source software or parts of open source software as well as software from third parties resp. parts of software from third parties.
14 | Confidentiality and Data Protection
In the course of the cooperation with the customer, the agency is going to treat any documents that shall not be disclosed to third parties strictly confidential. The agency is going obligate employees and third parties that receive such documents in the course of service provision under the same secrecy. That is only applicable as long as 1. the agency is not obliged to third parties, especially government agencies, to reveal this information and 2. internationally accepted technical standards require otherwise and the customer does not contradict. This confidentiality agreement extends beyond the duration of the contract with the agency.
The customer agrees that personal data such as name, company, occupation, date of birth, company registration number, power of representation, contact persons, company address and other addresses of the customer, phone and fax numbers, e-mail addresses, bank details, credit card numbers and UID number may be determined, saved and processed computerized for contract completion and customer support as well as for advertising measures such as offers, mailing of advertising material and newsletter (on paper and in electronic form) as well as in order to state the existing or former business relationship with the customer. The customer agrees on receiving electronic mail for advertising until further notice. This consent can be canceled any time in written form via e-mail, fax or letter send to the stated contact data.
15 | Web Hosting
15.1 | On request of the customer, the company provides storage space at a server connected to the Internet according to the offer description. These services are summarized under the term "web hosting". The customer is allowed to use this disk space for his purposes.
15.2 | The agency puts great emphasis on high reliability and strives to provide interference-free operation within the scope of its possibilities. If possible, the agencies informs the customer at an early stage about foreseeable business interruptions that are necessary for maintenance work, extension of service, addition of new hard or software as well as for the remedying of malfunctioning.
15.3 | Rendered services in the course of the offer description are invoiced in advance once a year. Other billing intervals have to be confirmed in written form. Cancellation of service is possible at any given time and has to be conducted in written form. Advanced payments are not refunded.
15.4 | In case due payments are not paid after receiving a second reminder, all services are terminated and all accounts are locked immediately. Financial loss caused by these actions has to be tolerated by the customer. Claims for damages or legal measures against the agency are not possible.
15.5 | Clients are fully responsible for all information they publish on the Internet. Especially, the following issues are prohibited:
- Web server may not contain content that is erotic, pornographic, immoral, extreme right- or left-winged or breaks Austrian or international law otherwise.
- Abusive sending of mass e-mails (spamming)
- Operation of mailing lists to such extend that the operational stability of the server or the server of the provider is endangered
- Download, streaming, tor or game server, distributed computing and IRC services and bouncer
- Unlawful archiving, copying or spreading of copyright protected software
- Providing information that infringe the copyright of third parties
- Providing and spreading computer viruses
- Providing extensive download pages
15.6 | Files for private usage may only be supplied on the web server up to a size of 100 MB.
15.7 | The client is obliged not to pass or make available his user identifications to third parties.
15.8 | The MySQL storage space is basically included, however, underlies a fair use policy and may only slightly exceed 50 MB.
15.9 | It is fundamentally prohibited to sublease services that are obtained by the agency to third parties. It is especially prohibited to sublease storage space to third parties, to set up domain forwarding and sublease e-mail aliases or to provide these free of charge. Subleasing of services obtained by the agency is only allowed upon consultation with the agency.
15.10 | It is up to the customer to create a backup of his data regardless of the fact that the agency regularly performs backups on a separate backup server. Retrieving data of the customer from the backup server is invoiced on the basis of time expended.
15.11 | In case the customer uses own scripts (Perl, PHP etc.) and software (e.g. software to build discussion forums), he is solely responsible that those function correctly and can not be hacked due to security lacks and endanger other accounts on the same server. If there is reason to suspect malfunctioning of scripts or software, the agency is entitled to deactivate the permission to execute those scripts or software until the malfunction is repaired and scripts and software function without error. Possible security holes have to be closed by the customer immediately after becoming known. In case the customer is not able the repair such problems or does not repair them on time, the agency is entitled to arrange for repair on the clients costs.
15.12 | The client commits himself to accept responsibility for all liability claims and damages that are caused because of the provision of files of the client or through the usage of the server or the software of the client from third parties. In case claims of omission from third parties are asserted against the agency due to the execution of files or the content of files of the customer, the agency is entitled to disable the access to these files as long as the customer has averted any claim unequivocally. The client is obliged to utilize the server only according to the agency's instructions and is liable for all damage he causes to the agency or other participants using the server because of improper use.
15.13 | In case the client breaches one or multiple points of this agreement, the agency is authorized to suspend the utilization of the service and to terminate the contract without notice and without compensation payment. Further compensation claims are reserved.
16 | Domains
16.1 | It is invalid to order domains that break or could break the law due to their name.
16.2 | The customer is responsible to assure that his domain or subdomain does not violet trademark law or other laws in regard of the domain name or terms. The client releases the agency from any liability that could be provoked hereby.
16.3 | The registration of a domain for the customer is made with the responsible NIC or a third party company.
16.4 | The agency does not guarantee that a domain, which is presented as available, is actually available upon the time of registration. The agency is not responsible to enable the registration in technical or legal terms.
16.5 | Domains will be registered immediately after ordering and are excluded from the right of revocation.
16.6 | Domain fees that emerge because of the utilization of a domain are invoiced to the customer in advance once a year. It is possible to cancel a domain at any given time. Cancelation requires written form. Domain fees that where paid in advanced are not refunded.
17 | Proper Law
The contract and all therefrom deriving rights and obligations as well as demands between the agency and the client are subjected to Austrian substantive rights under addition of its reference norms and under addition of UN purchase right.
18 | Severability Clause
Invalidity or ineffectiveness of single parts of these terms and conditions do not affect the validity of the remaining terms. In such a case, the invalid, unlawful or impracticable term shall be replaced by a lawful and practicable term that approaches the replaced term as closely as possible, as long as the term still corresponds to the original intention of both contracting parties. The same applies in the case of a contractual gap.
19 | Place of Performance, Jurisdiction & Miscellaneous
19.1 | Place of performance is Mondsee / Upper Austria (AT). If a product is to be shipped, the risk shall pass at that point of time at which the agency passes the product to the chosen transportation company.
19.2 | As place of jurisdiction for all legal disputes between the agency and the customer that are a result of the contractual relationship, the factual responsible court for Mondsee / Upper Austria (AT) shall be deemed as agreed. Regardless, the agency is entitled to sue the customers at his general place of jurisdiction.
19.3 | No party is going to refer to subsidiary agreements that are not recorded in written form or through e-Mail communication.
19.4 | Both contracting parties are obliged to inform about changes in address immediately, otherwise notifications to the last-named address are considered as legally effective delivered.
19.5 | References to natural persons in the masculine shall apply equally to women and men.download AGB