The nullity or invalidity of a part of the General Terms and Conditions shall not affect the validity or effectiveness of the remaining parts. Void or invalid provisions shall be replaced by valid provisions, which most closely reflect the commercial intent of the original provisions.
2. Placement of an order
Every contractual offer directed at the Contractor shall only become binding on the latter following the issuance of a written acceptance of the offer by the competent bodies of the Contractor. Any amendments to the order following an acceptance of the order shall require a written confirmation of the Contractor in order to be valid. Any cost estimates prepared by the Contractor prior to the receipt of the contract offer are non-binding.
The Contractor reserves the right to reject orders at its own discretion. Reasons for rejecting orders may, for example, include the following: (i) the order is contrary to the commercial or ethical interests of the Contractor, as set forth in the Contractor’s articles of incorporation, (ii) immoral or illegal orders, (iii) orders from companies who have not yet fully settled outstanding receivables owed to the Contractor and/or whose financial solvency and willingness is questionable based on other objective grounds, or, however, there has been a violation of the provisions of the Media Cooperation and Funding – Transparency Act (Medienkooperations- und förderungs-Transparenzgesetzes (MedKF- TG)) and the Principal has failed to undertake necessary modifications, despite having been requested to do so by the Contractor.
3. Invoicing and Terms of Payment
All prices of the Contractors are listed in euros and are exclusive of value added tax. In the case of divisible services, the contractor is entitled to issue partial invoices.
The invoices of the Contractor shall become payable within 30 days from the date of the invoice, free of expenses and without any deductions, and in a manner which allows the Contractor to have the invoiced amounts at its disposal at the latest by this date.
In case of a delay in payment, the Contractor shall be entitled to claim
interest for late payment, amounting to 9,2 percentage points above Euribor for each outstanding amount, unless the Principal proves that it is not responsible for the delay; in this case the interest for late payment amounts to 4 percentage points.
In any case and independent from any negligence the Contractor is in case of a delay in payment entitled to demand a reimbursement of any actual, necessary and appropriate dunning and collection costs incurred on him, as well as lawyer’s fees pursuant to the Austrian Law of Legal Tariffs (Rechtsanwaltstarifgesetz). If the Contractor carries out the dunning process itself, they are entitled to invoice an amount of EUR 10.90 for each dunning letter sent and an amount of EUR 3.70, on a quarterly basis, but in any case a lump sum of EUR 40. The right to claim for possible additional damages caused by the delay is reserved.
In case of advance payments, which are payable to third parties by the Contractor, the Principal shall, following a submission of the invoices, be obliged to provide corresponding payments on account. Only following the receipt of such payments on account shall the Contractor be obliged to provide advance payments to third parties.
4. Participation of the Principal
The Principal shall support the Contractor in the provision of services, particularly with respect to the observance of binding deadlines and time limits. In so far as this is required for the provision of services, the Principal shall contribute within its framework, and shall provide the relevant information and data. The Principal shall designate a competent contact person, who shall be responsible for communication between the Contractor and the Principal. On the basis of a reasoned request from the Contractor, a new contact person shall be nominated.
5. Withdrawal from the contract – cancellation fees
Withdrawal from the contract may only be in writing. If the withdrawal takes place up to 60 calendar days before the date of the commencement of the provision of services, the cancellation fees
amount to 25 percentage points of the agreed remuneration. Up to 30 days before the date of provision of services, the cancellation fees amount to 50 percentage points of the agreed remuneration. In case of a later withdrawal the entire remuneration becomes due.
6. Dates and deadlines
6.1 Force Majeure
Force majeure exists if ÖW or the Contractor is prevented from fulfilling his/her contractual obligations by an event that lies outside of his/her
sphere of influence and could not be foreseen or - insofar as it was foreseeable - was unavoidable.
A case of force majeure is classified as such when it meets the above requirements. Force majeure includes in particular:
i. the outbreak of infectious disease, war, riot, sabotage or terrorism;
ii. Natural disasters such as lightning, fire, explosion, flood, and earthquake;
iii. official orders in connection with sub-items i. and ii .;
The contracting parties are released from fulfilling their contractual obligations in correspondence with the extent and duration of the force majeure event. If the mutual services are to be provided in connection with a fixed delivery date, both contracting parties are permanently released from the mutual obligations in the event of force majeure. Both contracting parties bear the costs incurred by themselves. Costs that the Contractor incurred by way of third parties in connection with the order in question before the occurrence of this event will be borne by the Contractor.
The contracting party affected by an event of force majeure must immediately and demonstrably notify the other contracting party of the occurrence of a force majeure event. The expected duration of this event and the extent to which the fulfilment of the contractual obligations is impaired must be disclosed as far as possible. The contracting party affected by the force majeure event must make all reasonable efforts to re-fulfil the contract as soon as possible, provided that the subject of the contract is not one with fixed delivery date(s), where time is of the essence.
In the event that a force majeure event interrupts the fulfilment of the contractual obligations for more than 6 weeks, both contracting parties are entitled to withdraw from the contract. If the Principal withdraws from the contract, they have to reimburse the Contractor for the costs incurred up to the withdrawal from the contract.
It is hereby made clear that no contracting party can assert claims for damages due to a contract termination or delay in the provision of services in the event of force majeure.
The regulations set out above also apply to other extraordinary events over which the Contractor has no direct influence. This includes, for example, operational disruptions, strikes, traffic disruptions, etc. Such circumstances shall also include events pertaining to subcontractors of the Contractor and other third parties with whom the Contractor has a business relationship.
6.2 Failure to meet the agreed date of delivery for other reasons
If the Contractor is unable to meet the agreed date of delivery, the Contractor will grant a reasonable grace period of at least 2 weeks without the client having any claims of any kind from this delay, unless the Contractor was grossly at fault for this delay or intentionally it brought about. This period begins with the receipt of a written reminder sent to the Contractor, which fulfills the stated requirement (setting of a grace period).
7. Assignment of orders
The Contractor shall be entitled to assign the order or parts thereof to third parties, in so far as this does not impinge upon the legitimate interests of the Principal. The Principal shall inform the Contractor of any such interests prior to placing the order. In case of an assignment of significant part of the order, it shall inform the Principal of the intended assignment. Parts of the order are deemed significant in this sense if they exceed at least half of the entire order in value, whereby the total order value shall amount to a minimum of EUR 10,000, in order to trigger to the duty to warn. This information requirement also exisits with respect to those part of the order, which were expressly described as significant by the Principal at the time of the placement of the order.
8. Defective performance of the contract
The Contractor guarantees the proper performance of the contract. The warranty period is 6 months from the performance of the order. For overall orders the guarantee period for parts of the order, commences following the rendering of the respective partial performance. In case of improper performance of the order (non-performance, faulty performance), the Contractor may choose between rectifying the defect or having it rectified or granting an appropriate reduction in price or offering a replacement as a means of remedying the defect. The Principal shall notify the Contractor in writing and without delay of any defects in the contract execution, which become apparent, at the latest within two weeks following the provision of the service, specifying the individual defects, failing which any guarantee claim shall be forfeited. Section 924 sentence 2 ABGB does not apply.
9. Damages and Product Liability
With respect to working basis made available by the Principal to the Contractor, the former shall guarantee that this is free from any third party rights and that the Principal indemnifies and holds harmless the Contractor from and against any third party claims.
Furthermore, the Contractor shall not assume any responsibility with respect to the admissibility of advertising campaigns, in so far as the content thereof has been devised or developed in any other way by the Principal. The Principal shall rather itself be responsible for verifying the statutory requirements or having it verified. Should the illegality of an advertising campaign, which has been created or developed by the Principal in some other manner, give rise to claims against the Contractor, the Principle shall be obliged to indemnify and hold the Contractor harmless thereof.
If the Contractor notices a violation of statutory provisions, it can, at any time, demand that changes and additions be made to the order. Should the Principal refuse to implement a necessary amendment in accordance with the statutory provisions, the Principal shall bear the risk of non- performance. The Principal shall not be entitled to any warranty claims or damages, it shall however be liable to pay the agreed remuneration. In all cases concerning damages, the Contractor’s liability for loss of earnings, for consequential damages and third party claims, as well as slight negligence shall, insofar as this is permitted by law, be excluded. Liability expires within 6 months of the client becoming aware of the damage and the damaging party. If the Contractor performs the order with the help of third parties and claims for damages against these third parties arise in this context, the Contractor is entitled to assign these claims to the Principal. In this case, the client will give priority to these third parties.
10. Ownership and rights of use
The Principal shall be granted solely a non-exclusive right of use over all documents, materials, ideas, as well as other services, made available to it, for the purpose and to the extend specified in the contract. An assignment of such rights to third parties is not permitted and should the Principal violate this provision, it shall be liable to pay a contractual penalty, irrespective of fault, amounting to 50% of the net order value (excl. VAT); this is without prejudice to further claims of the Contractor. Any changes to the services rendered shall require the Contractor’s consent, as well as the additional consent of the authorised copyright owner.
All rights to inventions and other industrial property rights in works and inventions of its employees, which arise in the course of the provision of service, shall belong to the Contractor.
The Contractor shall be entitled to point out its trademark ownership with respect to all services it provides, without this giving rise to any claims whatsoever for the Principal.
Both contracting parties shall be prohibited from using any trade and business secrets, as well as information, regarding the type, scope of business and practical activities of the other contracting party, they may have received from their respective counterpart – even if by chance – either themselves or from disclosing this to third parties, both during and even after the signing of the contract.
14. Trademark rights
The acquisition of the industrial property rights (design, trademark, patent, utility model right as well as copyright) shall be deemed compensated for with the agreed remuneration, insofar as this acquisition is necessary for the contractually compliant use by the Principal. With respect to such working bases, which have been made available to the Contractor by the Principal, the latter guarantees that this is free from any third party rights and that the Principal indemnifies and holds harmless the Contractor from and against any third party claims.
With respect to all documents, materials, ideas and other services, placed at the disposal of the Contractor by the Principal for the purpose of the fulfilment of the contract, the Contractor shall merely retain a non- exclusive right of use for the purpose, and within the scope, stipulated by the contract. A transfer to any third party by the Contractor shall not be permitted. A transfer, within the scope of a sub contract shall however be permissible pursuant to clause 7.
An assignment of the Principal’s claims against the Contractor, resulting from the contract, shall only be permissible with the express written consent of the Contractor.
Set-offs against the Contractor’s claims or an assertion of a right of retention by the Principal shall only be permissible if the claims or the Principal’s right are/is beyond dispute or have/has been deemed legally valid by a court of law.
17. Place of Performance and Jurisdiction
The parties agree that Vienna shall be the place of payment and performance, unless otherwise expressly stated in the order.
The contracting parties hereby agree that the respective competent court within the jurisdictional district of the First District of Vienna, shall have exclusive jurisdiction over any disputes arising from or in connection with the contract.
18. Applicable Law
The contract as well as any disputes regarding the valid conclusion of the contract shall be exclusively governed by Austrian law, to the exclusion of the reference norms of the Austrian Private International Law Act (IPRG) and the UN sales law.