1.1
These General Terms and Conditions (GTC) apply exclusively to all legal relationships concerning services (such as the creation of explainer videos, graphic recording and illustrations) between Mag. Lana Lauren (hereinafter referred to as the Contractor) and the Client, even if no express reference is made to them. They are an integral part of the order.
1.2
If the Contractor has made deviating arrangements in the offer, these individual arrangements shall take precedence over the GTC. Verbal agreements require written confirmation.
1.3
Terms and conditions deviating from or conflicting with these GTC (in particular any GTC of the customer) shall not become part of the contract - unless the contractor expressly agrees to their validity in writing.
2.1
The contract between the customer and the contractor is based on the offer of the contractor. The scope of services and remuneration are set out in the offer.
2.2
Offers of the Contractor are non-binding and subject to change. The order must be placed in writing (e.g. by e-mail). By placing the order, the customer accepts the conditions stated here.
2.3
The contract shall be concluded by acceptance of the order by the Contractor. This must be done in writing (e.g. by order confirmation by e-mail), unless the Contractor indicates beyond doubt (e.g. by acting on the basis of the order) that it accepts the order.
3.1
The scope and content of the service to be provided shall be agreed individually by means of a written offer by the Contractor. The Contractor shall not owe any services that have not been expressly agreed (in writing in the offer). Subsequent changes to the content or scope of services require written confirmation by the Contractor.
3.2
The artistic and technical design of the work shall be the responsibility of the Contractor and shall be carried out in a manner that corresponds to the wishes previously described in the offer (specified by the Customer).
3.3
Substantial changes that have not been defined in advance shall (unless otherwise specified in the offer) be additionally charged at an hourly rate of € 160. Substantial changes are:
- changes that go beyond the number of correction loops defined in the offer
- changes to services that have already been accepted
- changes to the work on which the offer is based
- changes that result in a new commissioning of third-party suppliers.
3.4
If the customer modifies his ideas or wishes to an excessive extent after the order has been placed, the contractor reserves the right to withdraw from the order. The services performed up to that point will be charged (pro rata).
3.5
All services provided by the Contractor shall be inspected by the Client and accepted within 5 working days. Acceptance by the customer means approval of the artistic and technical quality. If no feedback is received within 5 working days, the services are considered approved by the customer.
3.6
The Contractor shall have the right to change the type, scope, price, terms and channels of purchase of the services it provides and to refuse its services completely in the event of default in payment or other breaches of duty.
4.1
The Customer shall make available to the Contractor in a timely and complete manner all information and documents required for the performance of the service. He shall inform the Contractor of all circumstances that are of importance for the execution of the order, even if these only become known during the execution of the order.
The Customer shall bear the expenses incurred by the fact that work has to be repeated or is delayed by the Contractor as a result of its incorrect, incomplete or subsequently changed information.
4.2
The customer is obliged to check the documents provided for the execution of the order (picture, video, audio, etc.) for copyrights, trademark rights or other rights of third parties and guarantees that the documents are free of rights of third parties and can therefore be used for the intended purpose. The Contractor shall not be liable in the event of merely slight negligence or after fulfilling its duty to warn due to an infringement of such third-party rights by documents provided.
If the Contractor is sued by a third party due to such an infringement of rights, the Customer shall indemnify and hold the Contractor harmless. He shall compensate the Contractor for all disadvantages incurred by the Contractor as a result of a third party claim.
4.3
The customer must accept the service after it has been provided. Acceptance may not be refused for creative-artistic reasons. Insignificant deviations from contractual specifications do not entitle the customer to refuse acceptance.
5.1
The Contractor shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents for the performance of contractual services and/or to substitute such services. The commissioning of third parties within the scope of an external service shall be carried out either in the Contractor's own name or in the name of the Customer.
5.2
The customer shall enter into obligations to third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the contract for good cause.
6.1
Stated performance deadlines shall only be binding if the Contractor has expressly confirmed them as binding in writing and the Customer has fulfilled all its obligations to perform the service in good time.
6.2
If the Contractor's performance is delayed for reasons for which it is not responsible (such as unforeseeable events that cannot be averted by reasonable means - in particular delays at the Contractor's contractors), the performance obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly.
6.3
The same applies if the customer is in default with his obligations necessary for the execution of the order (such as provision of documents or information). In this case, the agreed date shall be postponed at least to the extent of the delay.
6.4
If such delays (see 6.2 or 6.3) last more than two months, the Contractor shall be entitled to withdraw from the contract. In the event of a withdrawal due to delays attributable to the Customer, the Contractor shall be entitled to invoice the services rendered up to the time of withdrawal.
6.5
If the Contractor is in default, the Customer may only withdraw from the contract after it has granted the Contractor a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly. The period begins with the receipt of a reminder by the Contractor.
6.6
After fruitless expiry of the grace period, the Customer may withdraw from the contract. An obligation to pay damages based on the title of default shall only exist if there is evidence of intent or gross negligence on the part of the Contractor.
7.1
Unless otherwise agreed, the Contractor's fee claim for the contractually agreed service shall arise as soon as the service has been rendered.
7.2
All services of the Contractor that are not expressly covered by the agreed fee shall be invoiced separately. All cash expenses incurred by the Contractor shall be reimbursed by the Customer.
7.3
If the commissioned work (e.g. explainer video) is to be supplemented by dubbing and/or subtitling with additional versions that have not already been agreed upon in the offer, the creation of these versions (depositing the video with new audio or subtitles) will be charged additionally at an hourly rate of € 160. Costs for dubbing (if third parties are commissioned with this) will be invoiced separately to the customer.
7.4
In the case of services that extend over a longer period of time, the Contractor shall be entitled to invoice the services already rendered on a monthly basis.
7.5
The Contractor reserves the right to demand partial payments for larger orders:
- 25% of the total remuneration when the order is placed
- 25% after completion of 50% of the work
- 50% after delivery.
7.6
If the Customer unilaterally changes or terminates work commissioned without the involvement of the Contractor, the Customer shall compensate the Contractor for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of the Contractor, the Customer shall also reimburse the Contractor for the entire fee agreed for this order. Furthermore, the Contractor shall be indemnified and held harmless against any claims of third parties, in particular contractors of the Contractor.
7.7
Cost estimates of the Contractor are generally non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the Contractor by more than 25%, the Contractor shall inform the Customer 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 3 days of such notification and at the same time discloses more cost-effective alternatives.
7.8
For all work of the Contractor which is not carried out by the Customer for whatever reason, the Contractor shall be entitled to an appropriate remuneration. Upon payment of this remuneration, the Customer shall not acquire any rights to such work; rather, concepts, drafts and other documents that have not been executed shall be returned to the Contractor without delay.
8.1
The customer is obliged to pay all invoices in full and on time.
8.2
The invoice will be issued after the end of the project or on a monthly basis for the services provided up to that point and is payable within 14 days of receipt without deductions. This also applies to the charging of all cash expenses and other expenses. Delivered goods remain the property of the contractor until full payment has been made.
8.3
In the event of default in payment, the Contractor may charge interest on arrears in the amount of 9 percentage points above the base interest rate of the European Central Bank p.a. for legal transactions involving a business, and in the amount of 5 percentage points above the base interest rate of the European Central Bank p.a. for legal transactions involving a consumer. Furthermore, in the event of default in payment, the Customer undertakes to reimburse the Contractor for the reminder and collection expenses incurred, insofar as they are necessary for the appropriate legal prosecution. The assertion of further rights and claims shall remain unaffected.
8.4
In the event of default of payment by the Customer, the Contractor may declare all services and partial services rendered under other contracts concluded with the Customer to be immediately due and payable. Furthermore, the Contractor shall not be obliged to provide further services until the outstanding amount has been settled. The obligation to pay remuneration shall remain unaffected.
8.5
If payment in installments has been agreed, the Contractor 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.
8.6
The Customer shall not be entitled to set off its own claims against claims of the Contractor unless the Customer's claim has been acknowledged by the Contractor in writing or has been established by a court of law. A right of retention of the Customer is excluded.
9.1
The acquisition of rights of use and exploitation of the Contractor's services shall in any case be subject to full payment of the fees invoiced by the Contractor for such services.
9.2
By paying the fee, the customer acquires only the right of use for the agreed purpose and to the agreed extent of use. Unless otherwise agreed, in case of doubt only the simple right of use shall be granted. Any transfer or partial transfer of rights of use shall require the prior written consent of the Contractor.
9.3
The written consent of the Contractor shall be required for the use of the Contractor's services that exceeds the originally agreed scope of use (in terms of time, space and content), regardless of whether this service is protected by copyright. The Contractor shall be entitled to a separate usage fee for this.
9.4
Modifications or adaptations of the Contractor's services, in particular their further development by the Customer or by third parties working for the Customer, shall only be permitted with the express written consent of the Contractor. The copyright in accordance with § 38/1 Urh.G. for all services rendered lies with the Contractor.
9.5
The Contractor shall not be obliged to surrender computer files (open data) to the Customer. If the customer wishes to surrender the files, this must be agreed separately and paid for. Typical design styles (e.g. fonts) or individual graphic elements (e.g. photos or graphic elements) are inevitably used again and again for order processing, so that the customer expressly does not acquire any rights to these - even after acquiring a right of use.
9.6
The Customer shall be liable to the Contractor for any unlawful use in the double amount of the fee appropriate for such use. Any imitation, even partial, of a legally protected work is not permitted.
9.7
The possible contents of its services provided by the Contractor are protected by copyright. The use and payment of the services by the customer does not result in the transfer of intellectual property rights.
10.1
The potential customer acknowledges that the contractor is already providing cost-intensive preliminary services with any concept development prior to the conclusion of the main contract, although he has not yet assumed any performance obligations himself. The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential customer is not permitted to use and edit these parts without the consent of the contractor, if only on the basis of copyright law.
10.2
The concept may also contain ideas that do not reach the level of a work and thus do not enjoy the protection of copyright law. In particular, keywords, texts, graphics and illustrations, etc. are considered to be ideas within the meaning of this agreement, even if they do not reach the level of a work. Those elements of the concept are protected which are not generic and give the marketing strategy its characteristic character. The potential customer undertakes to refrain from commercially exploiting or having commercially exploited or using or having used these creative ideas presented by the contractor within the framework of the concept outside the corrective of a main contract to be concluded at a later date.
11.1
The Contractor shall be entitled to use the work created in fulfillment of the contract for the purpose of self-promotion in all media.
11.2
The Contractor shall be entitled (subject to the Customer's written revocation) to refer to the activities for the Customer in all media (e.g. use of company name and logo on the website) without the Customer being entitled to any remuneration for this. The customer has the right to object to such use in writing at any time.
11.3
The Contractor shall be mentioned by name with the public reproduction of its services, insofar as naming is not entirely unusual in the industry.
12.1
The Contractor shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
- the performance of the service becomes impossible for reasons for which the Customer is responsible or is further delayed despite a grace period of 14 days being set
- the Customer continues to breach material obligations under this contract, such as payment of an amount due or duties to cooperate, despite a written warning setting a grace period of 14 days
- there are concerns regarding the Customer's creditworthiness and the Customer fails to make advance payments at the request of the Contractor.
12.2
The Customer shall be entitled to terminate the contract for good cause without granting a grace period. Good cause shall be deemed to exist in particular if the Contractor continues to violate material provisions of this Agreement despite a written warning.
13.1
The customer must report any defects in writing without delay, but in any case within 7 days of performance by the contractor, hidden defects within 7 days of recognizing them, describing the defect - otherwise the performance shall be deemed approved. Claims for defects with regard to the artistic design are excluded.
13.2
In the event of justified and timely notification of defects, the Customer shall only be entitled to improvement or replacement of the service by the Contractor.
13.3
In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Contractor to take all measures necessary for the examination and remedying of the defects. The Contractor shall be entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for the Contractor.
13.4
The reversal of the burden of proof according to § 924 ABGB at the expense of the Contractor is excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect shall be proven by the Customer.
13.5
It shall also be incumbent on the Customer to carry out the review of the performance with regard to its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Contractor shall only be obliged to carry out a rough check of the legal admissibility. The Contractor 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 such content was specified or approved by the Customer.
14.1
No liability is assumed for the information in the contractor's offers.
14.2
The Contractor shall not be liable for errors in texts, images and media if these have been checked and approved by the Customer or if the Customer has been given the opportunity to do so, even if the Customer has not made use of this opportunity.
14.3
The Contractor disclaims any liability and warranty that may arise in connection with the provision of its services at the Customer's premises, insofar as it concerns slightly or moderately negligent breaches of duty of care.
14.4
The Contractor shall be liable within the scope of the statutory provisions only for damage demonstrably incurred by the Customer due to intent or gross negligence, up to a maximum, however, of the amount of the invoice or offer. The existence of gross negligence must be proven by the injured party. Liability for consequential and indirect damages is excluded in any case.
14.5
Claims for damages by the customer are excluded unless they are based on intent or gross negligence on the part of the contractor. Any claim for damages can only be asserted within 6 months from knowledge of the damage.
14.6
Any liability of the Contractor for claims made against the Customer on the basis of advertising measures (the use of a trademark) is expressly excluded. In particular, the Contractor shall not be liable for legal costs, the Customer's own legal fees or costs of judgment publications as well as for any claims for damages or similar claims of third parties.
14.7
Any liability of the Contractor for claims made against the Customer on the basis of the service provided by the Contractor is expressly excluded if the Contractor has fulfilled its duty to inform or if such a duty was not recognizable to it, whereby slight negligence does not harm. In particular, the Contractor shall not be liable for costs, claims or other claims of third parties. The Customer shall indemnify the Contractor in this respect.
15.1
The customer agrees that his personal data (in particular name, company, profession, date of birth, business address, telephone number, e-mail address, bank details as well as company register and VAT number) are determined, stored and processed automatically for the purpose of fulfilling the contract and supporting the customer, for sending offers as well as for the purpose of indicating the existing or former business relationship with the customer.
15.2
The contracting parties hereby undertake to treat as confidential all information which they obtain from each other directly or indirectly in the course of the project. Confidential treatment means that the information received may not be made accessible to third parties and that this information may not be commercially exploited for the parties' own purposes or for third parties. The contracting parties undertake to use the information received exclusively for the contractually specified purpose. Any use beyond this or disclosure to third parties requires the written consent of the information provider.
16.1
The contract and all mutual rights and obligations derived therefrom as well as claims between the Contractor and the Customer shall be governed by Austrian law to the exclusion of the international conflict of law rules.
16.2
The place of performance shall be the registered office of the Contractor. The court of jurisdiction for all legal disputes arising between the Contractor and the Customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the Contractor's registered office.
16.3
Should individual provisions of these GTC 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.
