TERMS & CONDITIONS

Date: 06.08.2018

SPARKLING DESIGN

Michael Fuchs, Gaisbergstr. 1, 5020 Salzburg

in the following called the agency.

Validity, the conclusion of the contract

1.1 The agency provides its services exclusively on the basis of the following terms and conditions. These also apply to all future business relationships, even if not expressly referred to.

1.2 Deviations from these as well as 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 are not accepted unless otherwise agreed in individual cases and in writing. A special objection to the terms and conditions of the customer by the agency is not required.

1.4 Should individual provisions of these GTC be ineffective, this shall not affect the binding nature of the remaining provisions and the contracts concluded on their basis. The ineffective provision is to be replaced by an effective one, which comes closest in its sense and purpose.

1.5 The offers of the agency are non-binding, unless otherwise expressly stated in writing in the offer.

2. Leistungsumfang, Auftragsabwicklung und Mitwirkungspflichten der Kundin/des Kunden

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

2.2 All services of the agency (in particular all preliminary drafts, sketches, final artworks, brush prints, blueprints, copies, color prints, and electronic files) are to be checked by the customer and within three working days – unless explicitly agreed otherwise in writing Entrance with the customer / at the customer release. 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 acts of cooperation necessary for the provision of the service owed by the agency are provided in due time and (if necessary) all organizational requirements have been established in the customer’s business.

In particular, the customer will make accessible all information and documents necessary for the provision of the service as well as the need-based control and monitoring of their own employees and capacities. The agency will inform of all circumstances that are important for the execution of the order, even if they become known only during the execution of the order. The customer shall bear the additional expenses arising from the fact that work must be repeated or taken over by the Agency as a result of his / her incorrect, incomplete or subsequently changed information or omitted participation; the additional expenses are charged according to item 6.1.

2.4 The customer is further obliged to check the documents (texts, photos, logos, etc.) provided for the execution of the order for any copyright, trademark rights or other rights of third parties. The Agency is not liable for any violation of such rights. If the agency is claimed for such an infringement, the customer shall indemnify and hold the agency harmless; the customer has to reimburse the agency for all disadvantages caused by third party claims.

2.5 For the submission of cost estimates, a fee is agreed. 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. External services / commissioning of third parties

3.1 The Agency is entitled, at its discretion, to carry out work itself or to commission third parties.

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

3.3 Insofar as the agency commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the agency. The terms and conditions of the respective contractors apply.

3.4 If the agency mediates a product or service or outsourced services are commissioned, the agency assumes no liability, the application of § 1313a ABGB is thus excluded.

4. Term

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

4.2 If the delivery/service is delayed in the case of bindingly agreed delivery or service periods (4.1) by the agency for no fault of its own (eg events of force majeure and other unforeseeable events that can not be prevented by reasonable means), the performance obligations shall be suspended for the duration and in scope obstacle and deadlines extend accordingly. If such delays persist for more than two months, the customer and the agency are entitled to withdraw from the contract. However, any services provided to explain the withdrawal from the agency must be paid aliquot; 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 set a grace period of at least 14 days in writing and this has expired fruitlessly. However, any services provided by the Agency until the resignation has been canceled are to be paid aliquot; at least 50% of the total order amount or the cost estimate must be paid. Claims for damages of the customer due to non-performance or delay in bindingly agreed delivery or service periods are excluded, except in case of intent or gross negligence on the part of the customer.

5. Premature resolution

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

An important reason exists in particular if:

a) performance of the service becomes impossible for reasons for which the customer is responsible, or is delayed further despite a grace period of 14 days

b) the customer continues , despite a written warning with a grace period of 14 days, against material obligations arising from this contract, such as payment of a sum due or duty to cooperate, verstößt.

c) legitimate concerns about the creditworthiness of the customer and this at the request of the agency neither advance nor ad) the bankruptcy or equalization proceedings are opened against the customer’s assets or an application for the opening of such proceedings is dismissed for lack of cost-covering assets or if the customer discontinues his payments.

5.2 In the case of declaration of premature termination by the customer or by the agency, the services rendered up to the declaration by the agency are to be paid in any case aliquot; at least 50% of the total order amount or the cost estimate must be paid.

6. Payment

6.1 Unless otherwise agreed, the agency’s fee for each individual service arises as soon as it has been provided. With an agreed hourly fee, the agency is entitled to charge the hourly services rendered at any time. The customer waives the plea of ​​defective performance (§10 52 ABGB). The agency is entitled to demand advance payments in the amount of up to 50% of the estimated contract value or the cost estimate.

6.2 The fee is understood as a net fee plus value-added tax at the statutory rate. In the absence of agreement in individual cases (especially in the expansion of the service content – point 2.1.) The Agency for the services provided and the transfer of copyright and trademark rights of use is entitled to a fee in the amount of € 70.00 per each working hour. In any case, all expenses incurred by the agency are in addition to being reimbursed by the customer.

6.3 Cost estimates from the agency are not binding. If it is anticipated that the actual cost will exceed the written costs by more than 15%, the Agency will inform the customer of the higher cost. The cost overrun will be deemed as approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announces more cost-effective alternatives. If the costs are exceeded by up to 15% of the total order volume of the cost estimate, no special agreement is required.

6.4 For all work of the agency which, for whatever reason, is not carried out for a reason in the customer’s sphere the agency is entitled to the agreed fee. The offsetting provision of § 1168 AGBG is excluded. By paying the fee, the customer acquires no rights of use for work already performed; non-executed concepts, drafts, and other documents must be returned to the Agency without delay.

7. Payment, retention of title

7.1 The fee is due within 7 days after receipt of the invoice and without deduction. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by the Agency until full payment of the fee, including all secondary liabilities owned by Agentur.

7.2 In case of default of the customer / the customer’s statutory default interest in force for entrepreneurs transactions height. Furthermore, the customer / the customer agrees in the event of late payment, the Agency, unless they are necessary for the appropriate legal action to replace the resulting reminder and collection expenses. In any case, this includes the costs of two reminder letters in the usual market amount as well as a reminder letter from a lawyer responsible for the collection. The assertion of further rights and claims remains of it unberührt.

7.3 In case of default of the client/customer, the agency can all represent under other payable immediately with the client/customer of the concluded contracts, services provided and partial services. Furthermore, the agency is not obliged to provide further services until payment of the outstanding amount. Was the payment in installments, then the Agency reserves in the event of non-timely payment of installments or incidental claims the right to demand immediate payment of all outstanding debt (forward loss).

7.4 The customer/buyer is not entitled to set off its own claims against claims of the agency, except the customer’s claim was recognized in writing by the agency or judicially determined.

8. Property rights and copyright

8.1 All services of the agency, including those from presentations (eg suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts), even individual parts thereof, as well as the individual work pieces and design originals remain the property of the agency and can at any time – especially on termination of the contract – to be reclaimed. If the agency does not receive an order after the presentation, all services of the agency, in particular the presentation documents and their contents remain the property of the agency; the customer is not entitled to continue to use these – in whatever form – the documents must be returned to the agency without delay. If the ideas and concepts for the solution of communication tasks introduced in the course of a presentation are not used in advertising material designed by the agency, the agency is entitled to use the presented ideas and concepts in a different way. By paying the fee, the customer acquires the right of use for the agreed purpose of use. Unless otherwise agreed, the customer may use the services of the agency exclusively for and in Austria. The acquisition of rights of use and exploitation of services provided by the agency requires in any case the full payment of the fees charged by the agency.

8.2 Changes or processing of services of the agency, in particular their further development by the customer or by third parties working for them, are only permitted with the explicit consent of the agency and – insofar as the services are protected by copyright – the author .

8.3 The use of Agency services that exceed the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright, requires the consent of the Agency. For this, the agency and the author are entitled to a separate appropriate remuneration.

8.4 For the use of services of the agency or of advertising material for which the agency has developed conceptual or design templates, is independent in the event of the conclusion of a concluded agency contract whether or not this benefit is protected by copyright – also requires the consent of the Agency.8.5 For uses according to point

8.5. In the first year after the end of the contract, the agency is entitled to the full agency remuneration agreed in the expired contract. In the 2nd or respectively. 3rd year after expiry of the contract, only half or one quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract no agency fee is payable.

8.6 The customer is liable to the Agency for any unlawful use twice the amount of the appropriate fee for this use but in any case 50% of the origin for the performance of the unlawfully used

8.7 Should not all points be discussed in this version, then the paragraphs relating to Werbung- und Marktkommunikation / E-Commerce

9. identification

9.1 The agency is entitled to refer to all advertising material and all advertising measures of the customers, on themselves and possibly to the copyright owner, without the customer being entitled to a claim for compensation.

9.2 The agency is, subject to the possible written revocation at any time of the customer, entitled to point out on its own advertising media and in particular on its Internet site in particular on the existing customer relationship (reference note).

9.3 The Agency reserves the right to change the name and possibly the logo of the customer / to list the customer as a reference on its website and to link to its website.

10. warranty

10.1 The Agency is liable (in the absence of other written agreement) only for efforts, not for success. The customer acknowledges that the artistic and graphic design are predominantly questions of taste and personal preference. Therefore, any warranty for artistic and graphic design, design, text design and choice of color is excluded. The customer is only responsible for the technical implementation of warranty claims.

10.2 The customer has any defects immediately – at least within eight days of delivery / Performance by the Agency (hidden defects within eight days of detection of the same) – to be reported in writing under the description of the defect. Otherwise, the service is considered approved. In this case, the assertion of warranty claims and claims for damages as well as the right to avoid errors due to defects are excluded.

10.3 In the case of a justified and timely notice of defects, the customer is entitled to the improvement or replacement of the delivery/service by the agency. The agency will remedy the deficiencies within a reasonable period of time (at least a period of 21 days), whereby the customer allows the agency all necessary measures for the investigation and correction of defects. The Agency is entitled to refuse to improve performance if it is impossible or disproportionately expensive for the Agency. In this case, the customer is entitled to the legal conversion or reduction rights. In the case of the conversion, modular Plus is entitled to a reasonable usage fee of 1% of the wages per day of the (also faulty) use by the customer. In the case of improvement, it is incumbent on the customer to carry out the transmission of the defective (physical) thing at his / her own expense.

10.4 It is the responsibility of the customer to check the performance for its legal, in particular competition, trademark, copyright owners and administrative admissibility. The agency is not liable for the accuracy of content if these were specified or approved by the customer.

10.5 The warranty period is six months from delivery/service. The right to recourse to the agency according to § 933b Abs 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.

11. Liability and product liability

11.1 In cases of slight negligence, the liability of the Agency for property damage or financial loss of the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, due defective or incomplete performance. The negligence of the victim has to be proven by the negligence.

11.2 Any liability of the agency for claims made against the customer by the agency (eg advertising measures) is expressly excluded if the agency the notice obligation has been fulfilled or such was not recognizable, whereby slight negligence does not harm. In particular, the agency is not liable for legal costs, own legal fees of the customer or costs of judgments as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the agency harmless.

11.3 Claims for damages of the customer shall lapse after six months from knowledge of the damage, but in any case after three years from the injury act of the agency. Claims for damages are limited in amount to the net order value.

12. Data protection (optical highlighting according to the case law)

The customer expressly agrees that the agency will disclose the data disclosed by the customer (name, address, e-mail, data for account transfer) for the purpose of fulfillment of the contract and customer care as well as for own advertising purposes automatically supported determined, stores and processes. The customer agrees that electronic mail (newsletter) will be sent to him for advertising purposes until further notice.

13. confidentiality

The Agency will treat all client business transactions that come to its knowledge, as well as its internal ones, strictly confidential. This also applies to the client regarding the agency.

14. Applicable law

The contract and all derived reciprocal rights and obligations, as well as claims between the agency and the customer, are subject to the Austrian substantive law under exclusion of the UN sales law.

15. Fulfillment and jurisdiction

15.1 Place of fulfillment is the provincial capital Salzburg. Upon shipment, the risk passes to the customer as soon as the agency has handed over the goods to their chosen carrier. Place of jurisdiction in Austria

15.2 The place of jurisdiction for all legal disputes between the agency and the customer in connection with this contractual relationship is the relevant court of the City of Salzburg. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction