Fimyli - the soulhealing company
Owner Wolfgang Michenthaler - UID: ATU43983007
Main square 18 Top 7
9560 Feldkirchen
Phone: +43 660 2269413
Mail: [email protected]
1.1 The agency michenthaler productions, owner Wolfgang Michenthaler, provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the agency and the client, even if no explicit reference is made to them. The GTC apply exclusively to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded shall be authoritative. Deviations from these and 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, even if known, unless otherwise expressly agreed in writing in individual cases. The Agency expressly objects to the Customer's GTC. No further objection to the customer's GTC by the agency is required.
1.4 The customer shall be notified of amendments to the GTC and these shall be deemed to have been 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 silence in the notification.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity 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 of the invalid provision.
1.6 The Agency's offers are subject to change and non-binding.
Before placing the order, the agency expressly points out to the customer that the providers of "social media channels" (e.g. facebook, hereinafter referred to as "providers") reserve the right in their terms of use to reject or remove adverts and advertisements for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which cannot be calculated by the agency, that adverts and appearances may be removed for no reason. In the event of a complaint from another user, the providers are granted the option of a counterstatement, but even in this case the content will be removed immediately. In this case, it may take some time to restore the original, lawful status. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer's order on them. By placing the order, the customer expressly recognises that these terms of use (co-)determine the rights and obligations of any contractual relationship. The agency intends to fulfil the customer's order to the best of its knowledge and belief and to comply with the guidelines of "social media channels". However, due to the currently valid terms of use and the simple possibility for every user to claim legal violations and thus achieve the removal of the content, the agency cannot guarantee that the commissioned campaign will be available at all times.
If the potential client has already invited the agency to create a concept in advance and the agency fulfils this invitation before the main contract is concluded, the following provision shall apply:
3.1 The potential client and the agency enter into a contractual relationship ("pitching contract") as a result of the invitation and acceptance of the invitation by the agency. This contract is also based on the GTC.
3.2 The potential client recognises that the agency already provides cost-intensive preliminary services with the concept development, although it has not yet assumed any performance obligations itself.
3.3 The concept is protected by copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential client is not permitted to use or edit these parts without the agency's consent on the basis of copyright law alone.
3.4 The concept also contains ideas relevant to advertising that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is subsequently produced and thus as the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.
3.5 The potential client undertakes to refrain from commercially exploiting or having exploited or using or having used the creative advertising ideas presented by the agency as part of the concept outside the corrective of a main contract to be concluded at a later date.
3.6 If the potential client is of the opinion that ideas were presented to him by the agency which he had already thought of before the presentation, he must inform the agency of this by e-mail within 14 days of the day of the presentation, citing evidence that allows a time allocation.
3.7 In the opposite case, the contracting parties shall assume that the Agency has presented the potential client with an idea that is new to the client. If the idea is used by the client, it shall be assumed that the agency has made a profit.
3.8 The potential customer may be released from its obligations under this point by paying appropriate compensation plus 20 % VAT. The exemption shall only take effect after full payment of the compensation has been received by the Agency.
4.1 The scope of the services to be provided is set out in the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol ("offer documents"). Subsequent changes to the service content shall require written confirmation by the Agency. Within the framework specified by the customer, the agency shall have freedom of design in the fulfilment of the order.
4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, colour prints and electronic files) must be checked by the customer and approved by the customer within three working days of receipt by the customer. After this period has elapsed without feedback from the customer, they shall be deemed to have been approved by the customer.
4.3 The Client shall provide the Agency with timely and complete access to all information and documents required for the provision of the service. He shall inform the Agency of all circumstances that are of significance for the fulfilment of the order, even if these only become known during the execution of the order. The customer shall bear the costs incurred as a result of work having to be repeated or delayed by the agency due to incorrect, incomplete or subsequently changed information provided by the customer.
4.4 The customer is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademarks, labelling 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. In the event of merely slight negligence or after fulfilment of its duty to warn, the Agency shall not be liable - at least in its internal relationship with the customer - for any infringement of such third-party rights by the documents provided. If a claim is made against the Agency by a third party due to such an infringement of rights, 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 claim by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in the defence against any third-party claims. The customer shall provide the Agency with all documents for this purpose without being requested to do so.
5.1 The Agency is authorised at its own discretion to perform the service itself, to make use of expert third parties as vicarious agents in the provision of contractual services and/or to substitute such services ("external service").
5.2 The commissioning of third parties as part of an external service shall be carried out either in the Agency's own name or in the name of the Client. The agency shall carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 The customer shall assume obligations to third parties that extend beyond the term of the contract. This shall also expressly apply in the event of cancellation of the agency contract for good cause.
6.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be approximate and non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by the Agency.
6.2 If the Agency's delivery/service is delayed for reasons for which it is not responsible, e.g. events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the service obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last for more than two months, the customer and the agency shall be entitled to withdraw from the contract.
6.3 If the agency is in default, the customer may only withdraw from the contract after setting the agency a reasonable grace period of at least 14 days in writing and this has elapsed 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.
7.1 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 the setting of a grace period of 14 days;
b) the customer continues, despite a written warning with a grace period of 14 days, to violate essential obligations arising from this contract, such as payment of a due amount or obligations to co-operate.
c) there are justified concerns regarding the creditworthiness of the customer and the customer neither makes advance payments at the request of the agency nor provides suitable security prior to the agency's performance;
7.2 The customer is entitled to cancel the contract for good cause without setting a grace period. Good cause shall be deemed to exist in particular if the Agency continues to violate 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.
8.1 Unless otherwise agreed, the Agency shall be entitled to a fee for each individual service as soon as it has been provided. The Agency shall be entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 5,000, or those that extend over a longer period of time, the agency is authorised to issue interim invoices or advance invoices or to request payments on account.
8.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the Agency shall be entitled to a fee at the usual market rate for the services provided and the transfer of the rights of use under copyright and trademark law.
8.3 All services provided by 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 Client.
8.4 The Agency's cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the Agency's written estimate by more than 15 %, the Agency shall inform the Client 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 notification and at the same time announces more cost-effective 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 to have been approved by the client from the outset.
8.5 If the client unilaterally changes or cancels work commissioned without the involvement of the agency - without prejudice to other ongoing support by the agency - the client shall pay the agency for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. If the cancellation is not due to a grossly negligent or intentional breach of duty by the Agency, the Client shall also reimburse the Agency for the entire fee (commission) agreed for this order, whereby the offsetting remuneration of § 1168 AGBG is excluded. Furthermore, the Agency shall be indemnified and held harmless against any claims by third parties, in particular by the Agency's contractors. Upon payment of the fee, the customer shall not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed must be returned to the agency immediately.
9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special terms of payment have been agreed in writing in individual cases. This shall also apply to the charging of all cash outlays and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all ancillary liabilities.
9.2 If the customer is in default of payment, statutory default interest shall apply in the amount 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 reminders in the usual market amount of currently at least € 20.00 per reminder as well as a reminder from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected by this.
9.3 In the event of default of payment by the customer, the agency may demand immediate payment of all services and partial services provided under other contracts concluded with the customer.
9.4 Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration shall remain unaffected.
9.5 If payment in instalments has been agreed, 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 deadline).
9.6 The Customer shall not be entitled to offset its own claims against claims of the Agency unless the Customer's claim has been recognised by the Agency in writing or established by a court of law.
10.1 All services of the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, 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 client acquires the right of use for the agreed purpose. Unless otherwise agreed, however, the customer may only use the Agency's services 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 invoiced by the Agency. If the customer uses the Agency's services before this point in time, this use shall be based on a loan relationship that can be revoked at any time.
10.2 Changes or adaptations of the Agency's services, in particular their further development by the Client or by third parties working for the Client, shall only be permitted with the express consent of the Agency and - insofar as the services are protected by copyright - of the author.
10.3 The Agency's consent shall be required for the use of the Agency's services beyond the originally agreed purpose and scope of use, irrespective of whether these services are protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for this.
10.4 The Agency's consent shall also be required for the use of the Agency's services or advertising materials for which the Agency has developed conceptual or design templates after the expiry of the Agency Agreement, irrespective of whether or not these services are protected by copyright.
10.5 In the first year after the end of the contract, the agency shall be entitled to the full agency fee agreed in the expired contract for utilisation in accordance with paragraph 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 more agency remuneration is payable.
10.6 The Client shall be liable to the Agency for any unauthorised use in double the amount of the reasonable fee for such use.
11.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the author on all advertising material and in all advertising measures, without the Customer being entitled to any remuneration for this.
11.2 Subject to written cancellation by the customer, which is possible at any time, the Agency shall be 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 by name and company logo (reference).
12.1 The customer must report any defects immediately, in any case within eight days of delivery/service by the agency, hidden defects within eight days of recognising them, in writing, 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 challenge errors due to defects shall be excluded.
12.2 In the event of justified and timely notification of defects, the customer shall be entitled to improvement or replacement of the delivery/service by the agency. The Agency shall rectify the defects within a reasonable period of time, whereby the customer shall enable the Agency to take all measures necessary for the investigation and rectification of defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high costs for the Agency. In this case, the customer shall be entitled to the statutory rights of cancellation or reduction. In the event of improvement, the client shall be responsible for transferring the defective (physical) item at its own expense.
12.3 It is also the responsibility of the client to check the legal admissibility of the service, in particular with regard to competition, trade mark, copyright and administrative law. The Agency shall only be obliged to carry out a rough examination of legal admissibility. In the event of slight negligence or after fulfilment of any duty to warn the client, the agency shall not be liable for the legal admissibility of content if this was specified or approved by the client.
12.4 The warranty period shall be six months from delivery/service. The right of recourse against the Agency pursuant to Section 933b (1) ABGB shall expire one year after delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption rule of § 924 ABGB is excluded.
13.1 In cases of slight negligence, liability of the Agency and its employees, contractors or other vicarious agents ("people") for property damage or financial loss suffered by the Customer shall be excluded, regardless of whether this relates to direct or indirect damage, 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. Insofar as the liability of the agency is excluded or limited, this shall also apply to the personal liability of its "people".
13.2 Any liability of the Agency for claims asserted against the Client on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has fulfilled its duty of disclosure or such a duty was not recognisable to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the Client's own legal fees or the costs of publishing judgements or for any claims for damages or other third-party claims; the Client shall indemnify and hold the Agency harmless in this respect.
13.3 The customer's claims for damages shall expire six months after becoming aware of the damage, but in any case after three years from the Agency's act of infringement. Claims for damages shall be limited to the net order value.
The customer agrees that his personal data, namely name/company name, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, VAT number) for the purpose of fulfilling the contract and supporting the customer as well as for his own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or previous business relationship with the customer (reference).
The client agrees to receive electronic mail for advertising purposes until further notice.
This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details listed at the top of the GTC.
The contract and all reciprocal rights and obligations and claims between the Agency and the Customer derived therefrom shall be governed by Austrian substantive law to the exclusion of its conflict of law rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
16.1 The place of fulfilment is the Agency's registered office. In the case of dispatch, the risk shall pass to the customer as soon as the agency has handed over the goods to the transport company selected by it.
16.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the competent court for the registered office of the Agency. Notwithstanding this, the Agency shall be entitled to sue the Customer at its general place of jurisdiction.
16.3 Insofar as designations relating to natural persons in this contract are only given in the masculine form, they refer to women and men in the same way. When applying the term to certain natural persons, the respective gender-specific form shall be used.
for advertising agencies
The "General Terms and Conditions" (GTC) published by the Advertising & Market Communication Association of the Austrian Federal Economic Chamber are merely a sample intended to provide guidance and suggestions. It is therefore by no means guaranteed that the model GTC will be applied in every detail by every communications company in the proposed form! As with any model, the model GTC can be supplemented or adapted according to the specific requirements of the respective company. For example, if a company not only provides services but also supplies goods (e.g. software), the GTC will most likely contain a retention of title clause.
GTCs are pre-formulated contractual clauses that one party submits to the other before concluding a contract. However, they are not automatically included in the contract and cannot be imposed on the contractual partner! They only apply if they have been contractually agreed. The contractual partner or client must therefore agree to the GTC used by its supplier. Consent can also be given conclusively, for example by the client not objecting to the GTC (which were attached to the offer, for example).
In accordance with the prevailing case law, the data protection provisions must be emphasised visually in general terms and conditions. The Association for Advertising and Market Communication recommends formatting these text passages in bold.
It can only be assumed that the client has consented to the GTC if it was aware that its supplier was using GTC. As a rule, it is sufficient if the contractor draws the client's attention to the GTC - either in writing or verbally. However, the reference must be clear; small print and barely legible references on the back of an offer are not sufficient. In the case of a contract offer on the Internet, a button or link can be used to refer to the GTC.
A mere reference to general terms and conditions is not sufficient. The client must have demonstrably had the opportunity to inspect the General Terms and Conditions before concluding the contract! Whether or not he actually inspects them is irrelevant. In the case of an offer on the Internet, the contractual partner should also have the opportunity to print out or save the GTC.
If reference is only made to the General Terms and Conditions after the contract has been concluded (e.g. on a delivery note or an invoice), this is too late: the General Terms and Conditions are then not part of the contract.
If both contracting parties use GTCs that contradict each other in some points, there is no agreement of intent, meaning that the contradictory GTCs do not become part of the contract. If the contradictory GTCs affect important points of the contract, the entire contract may not even be concluded in individual cases. It is therefore strongly recommended that the contracting parties reach an early agreement regarding the contradictory provisions of their respective GTCs.
A complete exclusion of liability, an exclusion of warranty in the event of defective performance or similar unilateral clauses are grossly disadvantageous to the other contracting party and are therefore inadmissible within the meaning of Section 879 (3) ABGB. If there is any doubt as to the legal soundness of these terms and conditions, it is advisable to seek professional legal advice.
In a public invitation to tender, only the client specifies the GTCs. If, in the course of a public invitation to tender, a contractor offers terms and conditions that differ from those required by the client, the contractor does not offer in accordance with the invitation to tender, which is usually an irreparable defect and leads to the contractor being eliminated.
Scope of application
(1) The Contractor's deliveries, services and offers are made exclusively on the basis of these Terms and Conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. Counter-confirmations by the Client with reference to its terms and conditions of business or delivery are hereby rejected.
(2) Deviations from these terms and conditions are only effective if the contractor confirms them in writing.
(3) These Terms and Conditions shall remain binding even if individual parts should not be effective for any reason whatsoever.
Price offers and remuneration
(1) The prices stated in the Contractor's offer shall apply subject to the proviso that the order data on which the offer was based remain unchanged.
(2) Any changes requested by the client in the course of the execution of the order shall be at the client's expense and shall be invoiced separately. Requests for improvements - such as the reworking of photographs - are not included in the offer price and therefore constitute extra requests that must be honoured separately.
(3) The Contractor shall be entitled to the accepted offer price as remuneration even if the actual scope of the order is less than originally agreed.
(4) The Contractor shall not be bound to comply with previous prices for follow-up orders.
(5) The Contractor's prices do not include value added tax unless the communication or offer is addressed to consumers within the meaning of the Consumer Protection Act.
(6) The Contractor's prices are ex works. They do not include freight, postage, insurance and other shipping costs.
III. invoice price
The Contractor shall invoice its deliveries and services on the day on which it delivers - even partially - (by e-mail; see point VII.). The invoice price may deviate from the offer price if the changes to the calculation basis mentioned in point II have occurred.
Terms of payment
(1) Payment (net price plus VAT) shall be made within 14 calendar days of the invoice date without deduction (arriving at the Contractor's bank account).
(2) The client may only offset against an undisputed or legally established claim. The client may only exercise a right of retention insofar as it concerns claims arising from the same contractual relationship. A client who is an entrepreneur within the meaning of the Austrian Commercial Code (UGB) shall not be entitled to any rights of retention or set-off.
(3) Justified complaints do not entitle the customer to withhold the entire invoice amount, but only a reasonable part of it.
Default of payment
(1) If a significant deterioration in the financial circumstances of the Client becomes known or if the Client is in default of payment, the Contractor shall be entitled to demand immediate payment of all invoices, including those not yet due. In addition, the Contractor shall have the right to make further work on current orders dependent on pro rata payments. Furthermore, the Contractor shall have the right to withhold the goods not yet delivered and to cease further work on current orders in the event of non-payment of the pro rata payments.
The Contractor shall also be entitled to these rights if the Client fails to make payment despite a reminder giving rise to default.
(2) In the event of default in payment, default interest in the amount of 12 % p.a. as well as compound interest in the statutory amount shall be payable irrespective of fault. This shall not exclude the assertion of further damages caused by default. Furthermore, in the event of culpable default in payment, the Client shall be obliged to reimburse the Contractor for all costs incurred that are necessary for the appropriate collection of the claim, such as lawyers' fees and the costs of debt collection agencies, and to compensate the Contractor for any further damage, in particular also the damage caused by the fact that correspondingly higher interest is incurred on any credit accounts as a result of non-payment.
Delivery time
(1) The delivery period shall commence on the day of receipt of the order by the Contractor, insofar as all working documents are clearly and unambiguously available to the Contractor and nothing to the contrary has been noted in the order confirmation; it shall end on the day on which the goods leave the Contractor's premises.
(2) Delivery dates and deadlines stated by the Contractor are only approximate and non-binding unless they have been expressly confirmed as binding in writing. No claims against the Client can be derived from non-compliance with non-binding delivery dates and deadlines. If a fixed date has been agreed, the obligations to co-operate (e.g. delivery of defect-free data, checking of preliminary and interim results, delivery of films, templates, author's corrections, etc.) and their deadlines must be specified when the order is placed. If the client does not fulfil its obligations to cooperate or does not meet the agreed deadlines, the contractor shall not be liable for meeting the agreed delivery date. This shall also apply in the event of subsequent changes to the order by the Client. In addition, the Contractor shall be entitled to compensation for any costs incurred as a result.
(3) The delivery time shall be extended in the case of
(a) delays for which the reasons lie within the sphere of the client;
(b) delays which were unforeseeable and not caused by the Contractor (illness, technical defects, etc.).
In both cases of extension of the delivery time, the client cannot derive any claims for damages from this. In the event of the occurrence of lit (a), the Contractor shall be entitled to compensation for the costs incurred by it as a result. If the delivery becomes impossible or unreasonable due to the circumstances mentioned in case (b), the Contractor shall be released from the obligation to perform.
(4) In the event of a delay in delivery, the client may only demand fulfilment and compensation for damages due to delay after a reasonable grace period has been set or declare withdrawal from the contract only after a new grace period has been set. The grace period must be appropriate to the type and scope of the order.
VII Completion of the work, delivery and acceptance
The client must provide his e-mail address (= delivery address) when placing the order. The Contractor shall be deemed to have completed its work upon delivery of the agreed photographs to the e-mail address provided. The photographs shall be deemed to have been accepted when they are sent to the client by e-mail.
VIII. Use of photographs for advertising purposes
Unless expressly agreed otherwise in writing, the Contractor is authorised to use photographs produced by it for marketing purposes. The Client gives its express and irrevocable consent to publication for the Contractor's advertising purposes and waives the assertion of any claims, in particular from the right to one's own image pursuant to Section 78 UrhG (Austrian Copyright Act) and to utilisation claims pursuant to Section 1041 ABGB (Austrian Civil Code).
A defect that triggers a warranty claim by the contractual partner only exists if the contractor deviates from what is contractually owed. A defect exists, for example, in the case of a blurred photograph or poor resolution. If a flawless photograph
However, if the client requests the post-processing of certain images, such as the anti-reflective coating of spectacles, this shall constitute a request for improvement, which shall be honoured separately in accordance with point II.2. In any case, there is no defect if the photograph was produced in a technically flawless form but does not meet the client's aesthetic expectations. Warranty claims may only be asserted for defects that already existed at the time of handover. The Contractor shall not assume any further warranty promises. In any case, there shall be no warranty claims for acts of fulfilment by the Contractor that are based on incorrect or inaccurate instructions from the Client or for damage caused by unsuitable or improper use or handling.
(1) Austrian substantive law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law is excluded. The contract language is exclusively German.
(2) The place of fulfilment for delivery and payment shall be the Contractor's registered office.
(3) The place of jurisdiction for legal disputes concerning the existence or non-existence of a contractual relationship subject to these Terms and Conditions of Delivery and Payment or for legal disputes arising from such contractual relationships shall be, at the Contractor's discretion, the Contractor's place of jurisdiction or the Client's general place of jurisdiction for legal actions brought by the Contractor, and exclusively the Contractor's general place of jurisdiction for legal actions brought against the Contractor.
