1. Validity, conclusion of contract
1.1 The FAM Fund (hereinafter “agency”) provides its services exclusively on the basis of the following general terms and conditions. These also apply to all future business relationships, even if no express reference is made to them.
1.2 Deviations from these and other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.
1.3 Any terms and conditions of the customer will not be accepted unless otherwise expressly agreed in writing in individual cases. The agency does not need to object to the customer’s general terms and conditions.
1.4 Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision must be replaced by an effective one that comes as close as possible to the purpose.
1.5 The offers of the agency are subject to change and non-binding.
2. Scope of services, order processing and cooperation obligations of the customer
2.1 The scope of the services to be provided results from the service description in the agency contract or a possible order confirmation by the agency, as well as the possible briefing protocol. Subsequent changes to the service content require written confirmation by the agency. Within the framework specified by the customer, the agency is free to design the order.
2.2 The customer will provide the agency with timely and complete access to all information and documents necessary for the provision of the service. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the effort that arises from the fact that work must be repeated or delayed by the agency due to its incorrect, incomplete or subsequently changed information.
2.3 The customer is further obliged to check the documents (company data) made available for the execution of the order for any copyrights, trademark rights or other rights of third parties. The agency is not liable for any violation of such rights. If the agency is used for such a violation of law, the customer shall indemnify and hold the agency harmless; he has to compensate her for all disadvantages that arise through the use of third parties.
3.1 Unless expressly agreed as binding, delivery or service deadlines are only approximate and non-binding. Binding appointments must be made in writing or confirmed in writing by the agency.
3.2 If the delivery / performance of the agency is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be avoided with reasonable means, the performance obligations are suspended for the duration and extent of the obstacle and are extended Deadlines accordingly. If such delays persist for more than two months, the customer and the agency are entitled to withdraw from the contract.
3.3 If the agency is in default, the customer can only withdraw from the contract after having given the agency a written grace period of at least one month and this has expired fruitlessly. Claims for damages by the customer due to non-performance or delay are excluded, unless there is evidence of intent or gross negligence.
4. Premature dissolution
4.1 The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason is in particular if
- a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;
- b) the customer continues to violate essential obligations from this contract, such as payment of an amount due or cooperation obligations, despite a written warning with a grace period of 14 days.
- c) there are legitimate concerns about the customer’s creditworthiness and the latter does not make advance payments at the request of the agency nor does it provide suitable security before the agency performs the service;
- d) bankruptcy or compensation proceedings are opened against the customer’s assets or an application to open such proceedings is rejected due to a lack of cost-covering assets or if the customer ceases to make payments.
4.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists in particular if the agency continues to violate essential provisions of this contract despite the written warning with a grace period of 14 days to remedy the breach of contract.
5.2 The fee is understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to fees in the amount customary in the market for the services rendered and the transfer of copyright and trademark rights of use.
5.3 All services of the agency that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency are to be replaced by the customer.
5.4 The agency’s cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the estimated costs in writing by the agency, the agency will inform the customer of the higher costs. The cost exceeding is considered approved by the customer if the customer does not object in writing within three working days after this notice and at the same time announces cheaper alternatives. If the costs are exceeded by up to 15%, a separate agreement is not necessary. The client is deemed to have approved this exceeding of the quotation from the outset.
5.5 The agency is entitled to the agreed fee for all work performed by the agency that (for whatever reason) is not carried out by the customer. By paying the fee, the customer does not acquire any rights of use for work already performed; Concepts, drafts and other documents that have not been carried out must rather be returned to the agency immediately.
6. Payment, retention of title
6.1 The fee is due immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the further charging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until full payment of the fee, including all secondary liabilities.
6.2 In the event of late payment by the customer, the statutory default interest in the amount applicable to business transactions applies. Furthermore, in the event of a delay in payment, the customer undertakes to compensate the agency for the reminder and collection expenses incurred, insofar as they are necessary for the appropriate legal action. In any case, this includes the costs of two reminders in the amount customary in the market and one reminder from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
6.3 In the event of a delay in payment by the customer, the agency can immediately call all services and partial services under other contracts concluded with the customer. Furthermore, the agency is not obliged to provide further services until the outstanding amount has been paid. If payment in installments has been agreed, the agency reserves the right to demand immediate payment of all outstanding debts in the event of late payment of partial amounts or additional claims (loss of deadline).
6.4 The customer is not entitled to offset his own claims against claims of the agency, unless the client’s claim has been recognized by the agency in writing or determined by the court.
7.1 Subject to the customer’s revocation, which is possible at any time, the agency is entitled to refer to the customer’s existing business relationship with its name and company logo on its own advertising media and in particular on its Internet website (reference note).
8.1 The customer must report any defects immediately, in any case within two days after delivery / service by the agency, hidden defects within four days after detection, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and compensation claims and the right to contest errors due to defects are excluded.
8.2 In the case of justified and timely notification of defects, the customer has the right to improve or exchange the delivery / service by the agency. The agency will remedy the defects within a reasonable period of time, whereby the client enables the agency to take all measures necessary for the investigation and correction. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the case of improvement, it is the responsibility of the customer to carry out the transmission of the defective (physical) matter at his own expense.
8.3 It is the responsibility of the client to check the performance of its legal, in particular competition, brand, copyright and administrative lawfulness. The agency is not liable for the accuracy of content if it has been specified or approved by the customer.
8.4 The warranty period is six months from delivery / service. The customer is not entitled to withhold payments due to complaints.
9. Liability and product liability
9.1 In cases of slight negligence, the agency is not liable for damage to property or pecuniary damage to the customer, regardless of whether it is direct or indirect damage, lost profit or consequential harm caused by a defect, damage due to delay, impossibility, positive breach of claim, fault upon conclusion of the contract, defective or incomplete performance. The victim must prove the existence of gross negligence.
9.2 Any liability of the agency for claims that are made against the customer on the basis of the service provided by the agency (e.g. advertising measures) is expressly excluded if the agency has complied with its notification obligation or if it was not recognizable to it, with slight negligence doesn’t hurt. In particular, the agency is not liable for litigation costs, the client’s own legal costs or the costs of publication of the judgment as well as for any claims for damages or other claims by third parties; the customer must indemnify and hold the agency harmless in this regard.
9.3 Claims for damages by the customer expire six months after knowledge of the damage; at least after three years from the agency’s infringement. Claims for damages are limited in amount to the net order value.
10. Data protection (visual highlighting according to the judicature)
The customer expressly agrees that the agency automatically determines, stores and processes the data provided by the customer (name, address, email, credit card data, data for account transfer) for the purposes of fulfilling the contract and supporting the customer as well as for its own advertising purposes. The client agrees that electronic mail will be sent to him for advertising purposes until further notice.
11. Applicable law
The contract and all mutual rights and obligations derived therefrom as well as claims between the agency and the customer are subject to Austrian substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
12. Place of performance and jurisdiction
12.1 The place of performance is the headquarters of the agency. In the case of dispatch, the risk passes to the customer as soon as the agency has handed over the goods to the transport company chosen by them.
12.2 The place of jurisdiction for all legal disputes between the agency and the customer in connection with this contractual relationship is the court responsible for the seat of the agency. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction.