AGB
Allgemeine Geschäftsbedingungen §
(Martin Wetzel, Martin Wetzel Design, Ybbsstraße 46, Tür 34-35, 1020 Wien, Österreich, office[at]martinwetzeldesign.com)- Geltung, Vertragsabschluss
- a) die Ausführung der Leistung aus Gründen, die der Kunde zu vertreten hat, unmöglich wird oder trotz Setzung einer Nachfrist von 14 Tagen weiter verzögert wird;
- b) der Kunde fortgesetzt, trotz schriftlicher Abmahnung mit einer Nachfristsetzung von 14 Tagen, gegen wesentliche Verpflichtungen aus diesem Vertrag, wie z.B. Zahlung eines fällig gestellten Betrages oder Mitwirkungspflichten, verstößt.
- c) berechtigte Bedenken hinsichtlich der Bonität des Kunden bestehen und dieser auf Begehren Martin Wetzel Design weder Vorauszahlungen leistet noch vor Leistung von Martin Wetzel Design eine taugliche Sicherheit leistet;
GENERAL TERMS AND CONDITIONS §
(Martin Wetzel, Martin Wetzel Design, Ybbsstraße 46, Door 34-35, 1020 Vienna, Austria, office[at]martinwetzeldesign.com)
Validity, conclusion of contract
1.1 Martin Wetzel, Martin Wetzel Design (hereinafter referred to as „Martin Wetzel Design“) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These shall apply to all legal relationships between Martin Wetzel Design and the customer, even if no express reference is made to them. The GTC shall apply exclusively to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded shall apply. Deviations from these and other supplementary agreements with the customer shall only be effective if they are confirmed in writing by Martin Wetzel Design.
1.3 Any terms and conditions of the customer shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. Martin Wetzel Design expressly objects to the customer’s GTC. No further objection to the customer’s GTC by Martin Wetzel Design 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 and of the specific amended clauses in the notification. This presumption of consent shall not apply to changes to essential service contents and fees.
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 of the invalid provision.
1.6 The offers of Martin Wetzel Design are subject to change and non-binding.
- social media channels
Before placing an order, Martin Wetzel Design expressly draws the customer’s attention to the fact 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 advertisements and appearances for any reason. Providers are therefore not obliged to forward content and information to users. There is therefore a risk, which Martin Wetzel Design cannot calculate, that advertisements and appearances may be removed for no reason. In the event of a complaint from another user, the providers will grant 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. Martin Wetzel Design 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 an order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. Martin Wetzel Design intends to carry out 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 any user to claim legal violations and thus achieve removal of the content, Martin Wetzel Design cannot guarantee that the commissioned campaign will be available at all times.
- protection of concepts and ideas
If the potential client has already invited Martin Wetzel Design to create a concept in advance and Martin Wetzel Design complies with this invitation before the main contract is concluded, the following provision shall apply:
3.1 The potential client and Martin Wetzel Design enter into a contractual relationship („pitching contract“) as early as the invitation and acceptance of the invitation by Martin Wetzel Design. This contract is also based on the GTC.
3.2 The potential client acknowledges that Martin Wetzel Design 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 consent of Martin Wetzel Design 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 produced later 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 the creative advertising ideas presented by Martin Wetzel Design as part of the concept or having them exploited or using them or having them used 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 Martin Wetzel Design has presented him with ideas that he has already come up with before the presentation, he must inform Martin Wetzel Design of this by email 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 Martin Wetzel Design has presented the potential client with an idea that is new to them. If the idea is used by the client, it shall be assumed that Martin Wetzel Design has made a profit from this.
3.8 The potential client may release itself from its obligations under this point by paying reasonable compensation, which shall be calculated on a case-by-case basis, plus 20% VAT. The exemption shall only take effect once Martin Wetzel Design has received full payment of the compensation.
4 Scope of services, order processing and the customer’s duty to cooperate
4.1 The scope of the services to be provided is set out in the service description in the offer or any order confirmation from Martin Wetzel Design, as well as any briefing protocol („offer documents“) or the briefing/instruction email. Subsequent changes to the content of the service require written confirmation from Martin Wetzel Design. Within the framework specified by the customer, Martin Wetzel Design shall have freedom of design in the fulfillment of the order.
4.2 All services provided by Martin Wetzel Design (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the client and approved by the client within three working days of receipt. If this period expires without feedback from the customer, they shall be deemed to have been approved by the customer.
4.3 The customer shall provide Martin Wetzel Design with timely and complete access to all information and documents required for the provision of the service. The client shall inform Martin Wetzel Design of all circumstances that are of significance for the execution of the order, even if these only become known during the execution of the order. The client shall bear the costs incurred if work has to be repeated or is delayed as a result of incorrect, incomplete or subsequently amended information provided by Martin Wetzel Design.
4.4 The client is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, 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. Martin Wetzel Design shall not be liable in the event of slight negligence or after fulfilling its duty to warn – at least in the internal relationship with the customer – for any infringement of such third-party rights by the documents provided. If claims are asserted against Martin Wetzel Design by a third party due to such an infringement, the customer shall indemnify and hold Martin Wetzel Design harmless; the customer shall compensate Martin Wetzel Design for all disadvantages incurred by Martin Wetzel Design as a result of claims asserted by third parties, in particular the costs of appropriate legal representation. The customer undertakes to support Martin Wetzel Design in the defense against any third-party claims. The customer shall provide Martin Wetzel Design with all documents for this purpose without being requested to do so.
5 External services / commissioning of third parties
5.1 Martin Wetzel Design shall be entitled, at its own discretion, to perform the service itself, to use expert third parties as vicarious agents in the provision of contractual services and/or to substitute such services („third-party service“).
5.2 The commissioning of third parties as part of a third-party service shall be carried out either in its own name or in the name of the customer, the latter after prior notification to the customer. Martin Wetzel Design shall select this third party carefully and ensure that it has the necessary professional qualifications.
5.3 The customer shall assume obligations towards third parties that have been named to the customer and that extend beyond the term of the contract. This shall also expressly apply in the event of termination of the contract for good cause.
6 Deadlines
6.1 Unless expressly agreed as binding, stated delivery or performance deadlines are only approximate and non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by Martin Wetzel Design.
6.2 If the delivery/performance of Martin Wetzel Design is delayed for reasons for which it is not responsible, such as force majeure events and other unforeseeable events that 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 Martin Wetzel Design shall be entitled to withdraw from the contract.
6.3 If Martin Wetzel Design is in default, the customer may only withdraw from the contract after setting Martin Wetzel Design a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in cases of intent or gross negligence.
7 Premature termination
7.1 Martin Wetzel Design is entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
- a) 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 to breach material 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 customer’s creditworthiness and the customer neither makes advance payments nor provides suitable security prior to Martin Wetzel Design’s performance at the request of Martin Wetzel Design;
7.2 The customer is entitled to terminate the contract for good cause without setting a grace period. Good cause shall be deemed to exist in particular if Martin Wetzel Design 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.
8 Fee
8.1 Unless otherwise agreed, Martin Wetzel Design shall be entitled to a fee for each individual service as soon as it has been provided. Martin Wetzel Design shall be entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 10,000.00 or those that extend over a longer period of time, Martin Wetzel Design is entitled 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 an individual case, Martin Wetzel Design shall be entitled to a fee at the usual market rate for the services provided and the transfer of copyright and trademark rights of use.
8.3 All services provided by Martin Wetzel Design that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by Martin Wetzel Design shall be reimbursed by the client.
8.4 Cost estimates/quotations from Martin Wetzel Design are non-binding. If it is foreseeable that the actual costs will exceed Martin Wetzel Design’s written estimate by more than 15%, Martin Wetzel Design 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 discloses 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 Martin Wetzel Design – without prejudice to the other ongoing support provided by Martin Wetzel Design – the client shall remunerate Martin Wetzel Design for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not due to a grossly negligent or intentional breach of duty by Martin Wetzel Design, the client must also reimburse Martin Wetzel Design for the entire fee (commission) agreed for this order, whereby the offsetting remuneration of § 1168 AGBG is excluded. Furthermore, Martin Wetzel Design shall be indemnified and held harmless against any claims by third parties, in particular by contractors of Martin Wetzel Design. Upon payment of the fee, the client 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 Martin Wetzel Design without delay.
9 Payment, retention of title
9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms 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 Martin Wetzel Design shall remain the property of Martin Wetzel Design 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 Martin Wetzel Design for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal action. This shall in any case include 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 shall remain unaffected.
9.3 If the customer defaults on payment, Martin Wetzel Design shall be entitled to demand immediate payment of all services and partial services provided under other contracts concluded with the customer.
9.4 Furthermore, Martin Wetzel Design is not obliged to provide any further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration shall remain unaffected by this.
9.5 If payment in installments has been agreed, Martin Wetzel Design 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 Martin Wetzel Design unless the customer’s claim has been acknowledged in writing by Martin Wetzel Design or established by a court of law.
10 Ownership and copyright
10.1 All services provided by Martin Wetzel Design, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, remain the property of Martin Wetzel Design, as do the individual workpieces and design originals, and may be reclaimed by Martin Wetzel Design 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. However, unless otherwise agreed, the client may only use the services of Martin Wetzel Design in Austria. The acquisition of rights of use and exploitation of Martin Wetzel Design’s services shall in any case be subject to full payment of the fees invoiced by Martin Wetzel Design. If the customer uses the services of Martin Wetzel Design before this point in time, this use is based on a loan relationship that can be revoked at any time.
10.2 Changes or adaptations of Martin Wetzel Design’s services, in particular their further development by the client or by third parties working for the client, are only permitted with the express consent of Martin Wetzel Design and – insofar as the services are protected by copyright – the author. The publication of all so-called „open files“ is therefore expressly not part of the contract. Martin Wetzel Design is not obliged to surrender them. This means that the client has no legal claim to the rights of use for „electronic works“ without a contractual assignment.
10.3 The consent of Martin Wetzel Design is required for the use of services provided by Martin Wetzel Design that go beyond the originally agreed purpose and scope of use, irrespective of whether this service is protected by copyright. Martin Wetzel Design and the author shall be entitled to separate appropriate remuneration for this.
10.4 The consent of Martin Wetzel Design is also required for the use of services provided by Martin Wetzel Design or advertising materials for which Martin Wetzel Design has developed conceptual or design templates after the expiry of the contract, irrespective of whether this service is protected by copyright or not.
10.5 Martin Wetzel Design shall be entitled to the full remuneration agreed in the expired contract in the first year after the end of the contract for use 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 further remuneration shall be payable.
10.6 The customer shall be liable to Martin Wetzel Design for any unlawful use in double the amount of the reasonable fee for such use.
11 Labeling
11.1 Martin Wetzel Design is entitled to refer to Martin Wetzel Design and, if applicable, to the author on all advertising material and in all advertising measures, without the client being entitled to any remuneration for this.
11.2 Subject to written revocation by the customer, which is possible at any time, Martin Wetzel Design shall be entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website by name and company logo (reference).
12 Warranty
12.1 The customer must notify Martin Wetzel Design in writing of any defects immediately, in any case within eight days of delivery/service, and of hidden defects within eight days of their discovery, describing the defect; otherwise any deviation in 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 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 Martin Wetzel Design. Martin Wetzel Design shall rectify the defects within a reasonable period of time, whereby the customer shall enable Martin Wetzel Design to take all necessary measures to investigate and rectify the defects. Martin Wetzel Design is entitled to refuse to improve the service if this is impossible or involves a disproportionately high expense for Martin Wetzel Design. In this case, the customer shall be entitled to the statutory rights of conversion 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 under competition, trademark, copyright and administrative law. Martin Wetzel Design is only obliged to carry out a rough check of legal admissibility. Martin Wetzel Design shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the customer if this was specified or approved by the customer.
12.4 The warranty period shall be six months from delivery/service. The customer is not entitled to withhold payments due to defects. The presumption rule of § 924 AGBG is excluded.
13 Liability and product liability
13.1 In cases of slight negligence, liability on the part of Martin Wetzel Design and its employees, contractors or other vicarious agents („people“) for property damage or financial loss suffered by the customer is 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 injured party must prove the existence of gross negligence. Insofar as the liability of Martin Wetzel Design is excluded or limited, this shall also apply to the personal liability of its „people“.
13.2 Any liability on the part of Martin Wetzel Design for claims made against the client on the basis of the service provided by Martin Wetzel Design (e.g. advertising measure) is expressly excluded if Martin Wetzel Design has fulfilled its duty to inform or if such a duty was not recognizable to it, whereby slight negligence is not detrimental. In particular, Martin Wetzel Design shall not be liable for legal costs, the client’s own legal fees or the costs of the publication of judgments or for any claims for damages or other third-party claims; the client shall indemnify and hold Martin Wetzel Design harmless in this respect.
13.3 Claims for damages by the customer shall expire six months after knowledge of the damage, but in any case three years after the act of infringement by Martin Wetzel Design. Claims for damages shall be limited to the net order value.
14 Applicable law
The contract and all reciprocal rights and obligations derived from it as well as claims between Martin Wetzel Design and the customer 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.
15 Place of performance and place of jurisdiction
15.1 The place of performance is the registered office of Martin Wetzel Design. In the case of shipment, the risk shall pass to the customer as soon as Martin Wetzel Design has handed over the goods to the carrier of its choice.
15.2 The place of jurisdiction for all legal disputes arising between Martin Wetzel Design and the customer in connection with this contractual relationship shall be the competent court for the registered office of Martin Wetzel Design. Notwithstanding this, Martin Wetzel Design shall be entitled to sue the customer at its general place of jurisdiction.
15.3 Insofar as references in this contract to natural persons are only made 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.
Confirmation
By signing the offer, the customer confirms that they have taken note of the GTC and that, if an order is placed, these rules form the basis of the contractual relationship.