TERMS AND CONDITIONS (GTC)

As of: July 12, 2022

SPARKLING DESIGN

hereinafter referred to as agency.

1. Validity, conclusion of contract

1.1 The 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 additional 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. There is no need for the agency to specifically object to the customer’s terms and conditions.

1.4 If individual provisions of these General Terms and Conditions are invalid, this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision must be replaced by an effective one that comes closest to its meaning and purpose.

1.5 The agency’s offers are subject to change and non-binding, unless this is expressly stated otherwise in writing in the offer.n.

2. Scope of services, order processing and the customer’s obligation to cooperate

2.1 The scope of the services to be provided results from the service description in the offer or any order confirmation from the agency as well as any briefing protocol. Subsequent changes to the service content require written confirmation from the agency. Within the framework specified by the customer, there is freedom of design when fulfilling the order.

2.2 All services provided by the agency (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and within three working days – unless otherwise expressly agreed in writing in individual cases – to be released upon receipt by the customer. If the customer does not respond in a timely manner, they are deemed to have been approved by the customer.

2.3 The customer will ensure that all cooperation activities required to provide the service owed by the agency are carried out in a timely manner and (if necessary) that all organizational requirements in the customer’s company are in place.

In particular, the customer will make available all information and documents that are necessary for the provision of the service and will ensure the needs-based management and control of its own employees and capacities. The agency 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 additional expense that arises from the fact that work has to be repeated or taken over by the agency or is delayed as a result of his/her incorrect, incomplete or subsequently changed information or failure to cooperate; The additional expenses will be offset in accordance with point 6.1.

2.4 The customer is also obliged to check the documents provided for the execution of the order (texts, photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties. The agency is not liable for any violation of such rights. If a claim is made against the agency due to such a legal violation, the customer shall indemnify and hold the agency harmless; The customer must compensate the agency for any disadvantages that it incurs as a result of making use of third parties.

2.5 A fee is agreed for the submission of cost estimates. In addition, the customer undertakes to reimburse the costs for any preliminary designs and preparatory work in accordance with the agreed hourly rate, even if the concept is not implemented.

3. Third-party services / commissioning of third parties

3.1 The agency is entitled, at its own discretion, to carry out work itself or to commission third parties to do so.

3.2 The agency is entitled to place orders necessary for the provision of services to third parties in the name and on behalf of the customer. The customer hereby expressly grants the corresponding power of attorney. The agency undertakes to select this third party carefully and to ensure that it has the necessary professional qualifications.

3.3 If the agency commissions necessary or agreed external services, the respective contractors are not vicarious agents of the agency. Es gelten die AGB der jeweiligen AuftragnehmerInnen.

3.4 If the agency provides a product or service or if third-party services are commissioned, the agency assumes no liability and the application of § 1313a ABGB is therefore excluded.

4. Dates

4.1 Specified delivery or service deadlines are non-binding unless expressly agreed as binding. Binding appointment agreements must be recorded in writing or confirmed in writing by the agency.

4.2 If the delivery/service is delayed in the case of bindingly agreed delivery or service deadlines (4.1) by the agency for reasons beyond its control (e.g. events of force majeure and other unforeseeable events that cannot be prevented by reasonable means), the service obligations are suspended for the duration and in The extent of the obstacle and the deadlines are extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.

However, services provided by the agency up to the declaration of withdrawal must in any case be paid pro rata; At least 50% of the total order amount or the cost estimate must be paid by the customer.

4.3 If the agency is in default, the customer can only withdraw from the contract after the agency has given the agency a grace period of at least 14 days in writing and this has expired without result. However, services provided by the agency up to the declaration of withdrawal must in any case be paid pro rata; At least 50% of the total order amount or the cost estimate must be paid. Claims for damages by the customer due to non-fulfillment or delay in bindingly agreed delivery or service deadlines are excluded, unless there is evidence of intent or gross negligence on the part of the customer.

5. Premature dissolution

5.1 The agency is entitled to terminate the contract with immediate effect for important reasons.

An important reason exists in particular if:

a) 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;

b) the customer continues to violate essential obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.

c) there are legitimate concerns about the customer’s creditworthiness and the customer does not provide any advance payment or suitable security at the agency’s request;

d) bankruptcy or settlement proceedings are opened against the customer’s assets or an application to open such proceedings is rejected due to insufficient assets to cover the costs or if the customer stops making payments.

5.2 In the event of a declaration of early termination by the customer or by the agency, the services provided by the agency up to the declaration must in any case be paid pro rata; At least 50% of the total order amount or the cost estimate must be paid.

6. Fee

6.1 Unless otherwise agreed, the agency’s claim to a fee for each individual service arises as soon as it has been provided. If an hourly fee has been agreed, the agency is entitled to invoice the hourly services provided at any time. The customer waives the defense of inadequate performance (§10 52 ABGB). The agency is entitled to demand advance payments of up to 50% of the expected order amount or cost estimate.

6.2 The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases (especially when expanding the service content – point 2.1.), the agency is entitled to a fee of €70.00 per hour of work commenced for the services provided and the transfer of copyright and trademark rights of use. In any case, all cash expenses incurred by the agency must also be reimbursed by the customer.

6.3 Cost estimates from the agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by more than 15%, the agency will inform the customer of the higher costs.

The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announce cheaper alternatives. If the costs are exceeded by up to 15% of the total order volume of the cost estimate, a special notification is not necessary.

6.4 For all work by the agency that is not carried out for whatever reason within the sphere of the customer, the agency is entitled to the agreed fee. The crediting provision of Section 1168 AGBG is excluded. By paying the fee, the customer does not acquire any rights of use to work that has already been carried out; Concepts, drafts and other documents that have not been implemented must be returned to the agency immediately.

7. Payment, retention of title

7.1 The fee is due for payment within 7 days of receipt of the invoice and without deductions. This also applies to the recharging of all cash outlays and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all additional liabilities.

7.2 If the customer defaults on payment, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse the agency for any dunning and collection costs incurred, to the extent that they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at the usual market rate as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.

7.3 If the customer defaults on payment, the agency can immediately declare all services and partial services provided within the framework of other contracts concluded with the customer due. Furthermore, the agency is not obliged to provide further services until the outstanding amount has been paid. If payment was agreed in installments, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or additional claims are not paid on time (loss of deadline).

7.4 The customer is not entitled to set off his own claims against the agency’s claims, unless the customer’s claim has been recognized in writing by the agency or has been determined by a court.

8. Property Rights and Copyright

8.1 All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts), including individual parts thereof, as well as the individual work pieces and original designs, remain the property of the agency and can be used by the agency at any time – especially upon termination of the contractual relationship – must be requested back. If the agency does not receive an order after the presentation, all of the agency’s services, in particular the presentation documents and their content, remain the property of the agency; the customer is not entitled to continue to use it – in whatever form;

Rather, the documents must be returned to the agency immediately. If the ideas and concepts introduced during a presentation to solve communication tasks are not used in advertising materials designed by the agency, the agency is entitled to use the ideas and concepts presented elsewhere. By paying the fee, the customer acquires the right to use it for the agreed purpose. Unless otherwise agreed, the customer may only use the agency’s services for and in Austria.

The acquisition of rights of use and exploitation of the agency’s services always requires full payment of the fees charged by the agency.

8.2 Changes or modifications to the agency’s services, such as in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and – if the services are protected by copyright – of the author .

8.3 The agency’s consent is required for the use of agency services that go beyond the originally agreed purpose and scope of use – regardless of whether this service is protected by copyright. The agency and the author are entitled to separate appropriate remuneration for this.

8.4 The use of the agency’s services or advertising materials for which the agency has developed conceptual or design templates also requires the agency’s consent in the event that a concluded agency contract expires – regardless of whether this service is protected by copyright or not necessary.

8.5 For uses in accordance with point 8.4. is available to the agency 1 year after the end of the contract you are entitled to the full agency fee agreed in the expired contract. In 2. respectively. 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From then on 4th year after the end of the contract, there is no longer any agency fee to be paid.

8.6 The customer is liable to the agency for any unlawful use in the amount of twice the fee appropriate for this use, but in any case 50% of the fee originally agreed for the provision of the unlawfully used service.

8.7 If not all points are discussed in this version, then the paragraphs on advertising and market communication / e-commerce automatically apply

9. Labeling

9.1 The agency is entitled to refer to itself and, if necessary, to the author on all advertising materials and in all advertising measures of the customer, without the customer being entitled to any payment for this.

9.2 The agency is entitled, subject to the customer’s possible written revocation at any time, to refer by name to the existing business relationship with the customer on its own advertising media and in particular on its Internet website (reference note).

9.3 The agency reserves the right to list the name and, if applicable, the customer’s logo as a reference on its website and to link to its website.

10. Warranty

10.1 The agency is only liable (in the absence of any other written agreement) for efforts, not for success. The customer acknowledges that the artistic and graphic design is primarily a matter of taste and personal preference. Therefore, any warranty for artistic and graphic design, design, text design and choice of colors is excluded.

The customer is entitled to warranty claims exclusively for the technical implementation.

10.2 The customer must report any defects immediately – at least within eight days of delivery/service by the agency (hidden defects within eight days of recognizing them) – in writing, describing the defect. Otherwise the service is considered approved. In this case, the assertion of warranty and damage claims as well as the right to challenge errors due to defects is excluded.

10.3 In the event of justified and timely notification of defects, the customer has the right to have the delivery/service improved or replaced by the agency. The agency will correct the defects within a reasonable period of time (at least a period of 21 days), whereby the customer enables the agency to take all measures necessary to investigate and correct the defects. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of conversion, modular Plus is entitled to an appropriate usage fee of 1% of the wages per day of use (including incorrect) by the customer. In the event of an improvement, it is the customer’s responsibility to transmit the defective (physical) item at his/her own expense.

10.4 It is the customer’s responsibility to check the service for legal admissibility, in particular competition, trademark, copyright and administrative law. The agency is not liable for the accuracy of content if it was specified or approved by the customer.

10.5 The warranty period is six months from delivery/service. The right to recourse against the agency in accordance with Section 933b Paragraph 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of Section 924 AGBG is excluded.

11. Liability and product liability

11.1 In cases of slight negligence, the agency’s liability for property damage or financial damage to the customer is excluded, regardless of whether the damage is direct or indirect, loss of profit or consequential damage due to defects, damage due to delay, impossibility, positive breach of contract, negligence in concluding the contract, due to inadequate or incomplete performance. The injured party must prove the existence of gross negligence.

11.2 Any liability of the agency for claims that are raised against the customer due to the service provided by the agency (e.g. advertising measures) is expressly excluded if the agency has complied with the obligation to provide information or if such an obligation was not apparent, although slight Negligence does no harm. In particular, the agency is not liable for legal costs, the customer’s own legal fees or costs of publication of judgments as well as for any claims for damages or other claims from third parties; The customer must indemnify and hold the agency harmless in this regard.

11.3 The customer’s claims for damages expire six months after becoming aware of the damage; in any case after three years from the agency’s infringing act. Claims for damages are limited to the net order value.

12. Data protection (optical highlighting in accordance with judicature)

The customer expressly agrees that the agency may use the data provided by the customer (name, address, email, account transfer details) for the purposes of fulfilling the contract and supporting the customer as well as for automatically determines, stores and processes its own advertising purposes. The customer agrees that electronic mail (newsletter) will be sent to him/her for advertising purposes until revoked.

13. Confidentiality

The agency will treat all of the customer’s business transactions that come to its knowledge, including internal ones, as strictly confidential. This also applies to the customer regarding the agency.

14. Applicable Law

The contract and all mutual rights and obligations as well as claims derived from it between the agency and the customer are subject to Austrian substantive law, excluding the UN Convention on Contracts for the International Sale of Goods.

15. Place of performance and jurisdiction

15.1 Place of performance is the state capital of Salzburg. When shipping, the risk passes to the customer as soon as the agency has handed over the goods to the transport company chosen by them. The place of jurisdiction is Austria!

15.2 The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is the court with subject matter jurisdiction for the state capital of Salzburg. Regardless of this, the agency is entitled to sue the customer at its general place of jurisdiction

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