Conditions

GENERAL TERMS AND CONDITIONS OF BUSINESS
by Goodest Branddesign e.U.
(Kleistgasse 23/11, A-1030 Vienna,
+43 680 3153165, office@goodestbranddesign.com)

1. Validity, conclusion of contract

1.1 Goodest Branddesign e.U. (hereinafter referred to as "author") provides his services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the author and the customer, even if no express reference is made to them. The terms and conditions are only applicable to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded is decisive. Deviations from these and other supplementary agreements with the customer are only effective if they are confirmed in writing by the author.
1.3 Any terms and conditions of the customer will not be accepted, even if known, unless otherwise expressly agreed in writing in individual cases. The author expressly contradicts the customer's general terms and conditions. A further objection to the general terms and conditions of the customer by the author is not required.
1.4 Changes to the GTC will be announced to the customer and are deemed to have been agreed, if the customer does not object to the changed GTC in writing within 14 days; the customer is expressly informed of the importance of silence in the communication.
1.5 Should individual provisions of these General Terms and Conditions be ineffective, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to the meaning and purpose.
1.6 The author's offers are subject to change and non-binding.


2. Protection of concepts and ideas

If the potential customer has already invited the author in advance to create a concept and the author accepts this invitation before the conclusion of the main contract, the following regulation applies:
2.1 The potential customer and the author enter into a contractual relationship ("pitching contract") as soon as the invitation is issued and the author accepts the invitation. This contract is also based on General Terms and Conditions.
2.2 The potential customer acknowledges that the author already provides cost-intensive advance services with the concept development, although he has not yet assumed any performance obligations.
2.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach threshold of originality. The potential customer is not permitted to use and edit these parts without the consent of the author on the basis of copyright law.
2.4 The concept also contains advertising-relevant ideas that do not reach the threshold of originality 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 igniting spark of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its distinctive character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising material, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach threshold of originality.
2.5 The potential customer undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by the author as part of the concept outside of the corrective of a main contract to be concluded later.
2.6 If the potential customer believes that the author presented him with ideas that he had already come up with before the presentation, he must notify the author of this within 14 days of the day of the presentation by e-mail, citing evidence, which allows a chronological assignment to be announced.
2.7 In the opposite case, the contracting parties assume that the author has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the author was meritorious.
2.8 The potential customer can release himself from his obligations under this point by paying a reasonable compensation. The exemption only occurs after the author has received full payment of the compensation.


3. Scope of services, order processing, and the customer's obligation to cooperate

3.1 The scope of the services to be provided results from the service description in the contract between the customer and the author or any order confirmation. Subsequent changes to the service content require written confirmation by the author. Within the framework specified by the customer, the author has freedom of design when fulfilling the order.
3.2 All services provided by the author (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color prints, and electronic files) must be checked by the customer and approved by the customer within three working days of receipt. After this period has elapsed without feedback from the customer, they are deemed to have been approved by the customer.
3.3 The customer shall make all information and documents necessary for the provision of the service available to the author in a timely and complete manner. He will inform the author of all circumstances that are important for the execution of the order, even if they only become known during the execution of the order. The customer bears the expenses incurred as a result of the fact that work has to be repeated or delayed by the author as a result of incorrect, incomplete, or subsequently changed information.
3.4 The customer 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 any rights of third parties and can therefore be used for the intended purpose. The author is not liable in the event of slight negligence or after fulfilling its duty to warn - at least in the internal relationship with the customer - for a violation of such rights of third parties through the documents made available. If the author is sued by a third party for such an infringement, the customer shall indemnify and hold the author harmless; he has to compensate him for all disadvantages that arise from claims by third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the author in defending against any claims by third parties. The customer shall provide the author with all documents for this purpose without being asked.


4. External services / commissioning third parties

4.1 The author is entitled, at its own discretion, to perform the service itself, to use knowledgeable third parties as vicarious agents for the provision of contractual services, and/or to substitute such services ("external service").
4.2 The commissioning of third parties within the framework of an external service is carried out either in the authors own name or in the name of the customer. The author will carefully select this third party and ensure that it has the necessary professional qualifications.
4.3 The customer has to enter into obligations towards third parties that go beyond the contract period. This also applies expressly in the event of termination of the contract between the customer and the author for an important reason.


5. Appointments

5.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by the author.
5.2 If the delivery/service of the author is delayed for reasons for which he is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted with reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and the deadlines accordingly. If such delays last more than two months, the customer and the author are entitled to withdraw from the contract.
5.3 If the author is in default, the customer can only withdraw from the contract after he has given the author 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 the case of proof of intent or gross negligence.


6. Early Dissolution

6.1 The author is entitled to terminate the contract for important reasons with immediate effect. 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 setting a grace period of 14 days;
b) the customer continues to violate essential obligations under this contract, such as payment of an amount that has become due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns about the creditworthiness of the customer and the customer does not make any advance payments at the request of the author nor provide suitable security prior to the author's performance;
6.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists in particular if the author continues to violate essential provisions of this contract, despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.


7. Fee

7.1 Unless otherwise agreed, the author is entitled to a fee for each individual service as soon as it has been rendered. The author is entitled to demand advance payments to cover his expenses. From an order volume with a budget of € 3000 or those that extend over a longer period of time, the author is entitled to create interim invoices or advance invoices or to request payments on account.
7.2 The fee is a gross fee. VAT is not applicable due to the small business regulation. In the absence of an agreement in individual cases, the author is entitled to a fee at the usual market rate for the services rendered and the transfer of the copyright and trademark rights of use.
7.3 All services of the author that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the author are to be reimbursed by the customer.
7.4 The author's cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the author's written estimate by more than 20%, the author 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 announces cheaper alternatives. If the costs are exceeded by up to 20%, a separate agreement is not required. Exceeding the cost estimate is deemed to have been approved by the customer from the outset.
7.5 If the customer unilaterally changes or cancels commissioned work without the involvement of the author - without prejudice to other ongoing support by the latter - he must reimburse the author 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 on the part of the author, the customer must also reimburse the author for the entire fee (commission) agreed for this order, whereby the crediting of § 1168 AGBG is excluded. Furthermore, the author is to be indemnified and held harmless with regard to any claims by third parties, in particular by the author's contractors. 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 implemented are to be returned to the author immediately.


8. Payment, retention of title

8.1 The fee is due for payment within 10 days of receipt of the invoice and without deduction unless special payment terms have been agreed in writing in individual cases. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by the author remain the author's property until the payment has been made in full, including all ancillary obligations.
8.2 If the customer is in arrears with payment, the statutory interest on arrears shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the author for the dunning and collection costs incurred, insofar as they are necessary for appropriate legal prosecution. The assertion of further rights and claims remains unaffected.
8.3 If the customer defaults in payment, the author can demand immediate payment of all services and partial services rendered as part of other contracts concluded with the customer.
8.4 Furthermore, the author is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee remains unaffected.
8.5 If payment in installments has been agreed upon, the author reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
8.6 The customer is not entitled to offset his own claims against the author's claims unless the customer's claim has been recognized in writing by the author or has been determined by a court.


9. Ownership and Copyright

9.1 All of the author’s services, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, photos, slides, or videos), including individual parts thereof, remain the property, as do the individual workpieces and original drafts of the author and can be reclaimed by the author at any time - in particular upon the termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation of the author's services requires full payment of the fees charged by the author. If the customer uses the author's services before this point in time, this use is based on a loan relationship that can be revoked at any time.
9.2 Changes or processing of 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 author and - insofar as the services are protected by copyright - the creator.
9.3 For the use of the author's services that go beyond the originally agreed purpose and scope of use, the consent of the author is required - regardless of whether this service is protected by copyright. The author and the creator are entitled to separate appropriate remuneration for this.
9.4 For the use of the author's services or advertising material for which the author has developed conceptual or design templates, after the end of the customer's contract with the author, regardless of whether this service is protected by copyright or not, the consent of the author is necessary.
9.5 The customer is liable to the author for any unlawful use in double the amount of the appropriate fee for this use.


10. Marking

10.1 Subject to the written revocation of the customer, which is possible at any time, the author is entitled to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).


11. Warranty

11.1 The customer must report any defects immediately, in any case within seven days after delivery/service by the author, and hidden defects within seven days after detection of the same, in writing with a description of the defect; otherwise the service is deemed to have been approved. In this case, the assertion of warranty and damage claims as well as the right to contest errors due to defects is excluded.
11.2 In the event of a justified and timely notice of defects, the customer has the right to have the author improve or replace the delivery/service. The author will remedy the defects within a reasonable period of time, whereby the customer enables the author to take all necessary measures to investigate and remedy the defect. The author is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the author. In this case, the customer is entitled to statutory conversion or reduction rights. In the case of improvement, it is up to the customer to transmit the defective (physical) item at his own expense.
11.3 It is also the client's responsibility to check the service for its legal admissibility, in particular with regard to competition, trademark, copyright, and administrative law. The author is only obliged to carry out a rough check of legal admissibility. The author is not liable in the case of slight negligence or after fulfilling a possible warning obligation towards the customer for the legal admissibility of content if this was specified or approved by the customer.
11.4 The warranty period is six months from delivery/service. The right of recourse against the author 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 of § 924 ABGB is excluded.


12. Liability and Product Liability

12.1 In cases of slight negligence, the author and its employees, contractors, or other vicarious agents ("people") are not liable for property damage or financial loss suffered by the customer, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to default, impossibility, positive breach of contract, fault at the conclusion of the contract, due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. Insofar as the liability of the author is excluded or limited, this also applies to the personal liability of her "people".
12.2 Any liability on the part of the author for claims made against the customer on the basis of the service provided by the author (e.g. advertising campaign) is expressly excluded if the author has complied with his obligation to inform or if such was not recognizable to her, with slight negligence no harm. In particular, the agency is not liable for legal costs, the customer's own legal fees or costs for the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer must indemnify and hold harmless the author in this regard.
12.3 Claims for damages by the customer expire six months after knowledge of the damage; but in any case after three years from the infringing activities of the author. Claims for damages are limited to the gross order value.


13. Privacy

Information on the subject of data protection is given in the author's data protection declaration. This can be accessed under the following link: Author's data protection declaration.


14. Governing Law

The contract and all mutual rights and obligations derived from it as well as claims between the author and the customer are subject to Austrian substantive law to the exclusion of its reference standards and to the exclusion of the UN Sales Convention.


15. Place of Performance and Jurisdiction

15.1 The place of performance is the author’s registered office. In the case of shipping, the risk passes to the customer as soon as the author has handed over the goods to the transport company chosen by him.
15.2 The place of jurisdiction for all legal disputes arising between the author and the customer in connection with this contractual relationship is the competent court for the author's registered office. Irrespective of this, the author is entitled to sue the customer at his general place of jurisdiction.
15.3 Insofar as designations relating to natural persons are only given in the masculine form in this contract, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form is to be used.