General Terms and Conditions of Business – Valid as of 01.01.2012 – For MusicArtsVienna
1.1. MusicArtsVienna – hereinafter referred to as the Agency – provides its services exclusively on the basis of the following General Terms and Conditions of Business. These shall also apply to future business relations, even if the General Terms and Conditions of Business are not expressly referred to.
1.2. Additional agreements, restrictions, changes or additions to these General Terms and Conditions of Business shall be made invalid unless made and accepted in writing; this also applies to deviations from written form requirements.
1.3. Any Contracting partner terms which conflict or deviate from these General Terms and Conditions of Business shall be invalid unless they have been explicitly accepted in writing by the Agency.
1.4. If any provision of these General Terms and Conditions of Business is found to be invalid, obligations concerning other provisions and any agreements concluded pursuant to these provisions shall not be affected thereby. The invalid provision shall be replaced by a provision which best corresponds to its intent and purpose.
- Conclusion of Purchase Agreement
2.1. The basis for the conclusion of a Purchase Agreement shall be an offer provided by the Agency or the Client’s purchase order, in which the scope of supply and remuneration are set down in writing. Agency offers are subject to confirmation and are non-binding.
2.2. If the Client submits an order they shall be bound to the Agency by said purchase order for a period of two weeks following date of receipt by the Agency. The Contract Agreement is binding upon its acceptance by the Agency. Acceptance shall be in writing (e.g. by order confirmation) unless the Agency otherwise specifies acceptance of the order beyond all doubt (e.g. by initiation of work for the given order).
- Scope, Order Process and Client Cooperation Duties
3.1. The scope of services to be provided is determined in the purchase order or the specification of services or the Contract. Subsequent changes to the specification of services shall be agreed upon in written form.
3.2. All services provided by the Agency (in particular all project drafts) must be checked by the Client and authorized within three days. If the Client fails to approve such services within this time, the services shall be considered to have been approved.
3.3. The Client shall provide the Agency with all information and documentation required for providing the services. The Client shall inform the Agency of all procedures relevant to the conclusion of the order, even if these circumstances are only made known during order processing. The Client shall be liable for any expenses or losses incurred as a result of work which the Agency must delay or repeat due to the Client’s provision of incorrect, incomplete, or subsequently revised details.
3.4. In addition, the Client shall be obligated to verify all documents provided for the completion of a Contract Agreement (information, locations, room specifications, technical details, music preferences, etc.) for possible existing copyrights, declaration rights or any other rights by third parties. The Agency shall not be liable for any infringement of such rights. In the event that any such claim is raised against the Agency, the Client shall indemnify the Agency, holding it harmless from any losses caused; the Client shall compensate all losses the Agency may suffer due to any such third party claims.
- External Services / Assigning Third Parties
4.1. At its own discretion, the Agency shall be entitled to render services itself, to subcontract any part of the services to third parties and/or to offer substitute services („care staff”).
4.2. The appointment of third parties shall be either on the Agency’s or the Client’s own behalf, with costs in either case to be borne by the Client.
4.3. The Agency will select external third parties with care and will make sure that they have the required professional qualifications.
5.1. Scheduling of dates and deadlines shall be agreed in writing or confirmed beyond doubt. The Agency shall strive to meet such agreed-upon deadlines and dates. Failure to comply with the dates only entitles the Client to compensation for damages if they have granted the Agency a reasonable grace period of at least fourteen days. The said grace period shall commence on the day the Agency receives a written letter of reminder.
5.2. After vain expiration of such a grace period, the Client may withdraw from the Contract. The Agency shall only be obliged to pay compensation for damages resulting from the delay where these have occurred through intent or gross negligence.
5.3. The Agency shall not be obliged to meet deadlines in the event of unavoidable or unforeseeable events, particularly delays caused by external or third parties. The same shall apply if the Client is behind schedule with fulfilling its Contractual obligations required for the completion of an order (e.g. provision of documents or information). In that case the agreed deadline shall be extended at least by the duration of the delay.
- Right of Withdrawal
The Agency shall be entitled to withdraw from the Contract, particularly if:
- the provision of the service is impossible or will be subject to further delays caused by the Client in spite of the grace period;
- justified concerns regarding the Client’s creditworthiness and if upon request by the Agency the Client fails to provide an advance payment or a reasonable security upon request.
- Remuneration for Agency Concepts / Drafts
7.1. Unless otherwise agreed, the Agency shall receive remuneration for each single service upon completion. The Agency is entitled to demand prepayments to cover the expenses of the Contract work. In the event of non-payment of the invoice within one month, a single written reminder will be sent. Should payment not be effected with eight days and the outstanding amount not transferred onto the given bank account, the case shall be handed over to a debt collection agency with all costs to be borne by the Client.
7.2. The Agency shall receive remuneration for the completion of its work. The remuneration is understood to be exclusive of statutory value added tax.
7.3. All services of the Agency that are not explicitly included in the agreed remuneration shall be expensed separately. All cash expenditures incurred by the Agency shall be reimbursed to the Agency by the Client.
7.4. Estimates provided by the Agency are non-binding. If the actual costs are expected to exceed the amount stated in the Agency’s estimate by more than 10%, the Agency shall inform the Client of the increased costs. The cost overrun shall be deemed approved if the Client fails to object and to present more cost-saving alternatives in writing within three days upon receipt of this information.
7.5. The Agency will charge a proportional fee for all services which, for whatever reason, are not carried into effect by the Client. Such payment shall however not entitle the Client to acquire any right in and to these services; furthermore, concepts, drafts and any documents that have not been carried into effect are to be returned to the Agency without delay.
8.1. The Agency’s invoices are due as of the date of the invoice, net cash, without any deductions or discounts, and, unless specified otherwise, within ten calendar days of receipt of the invoice. In the event of delayed payment, default interest in the amount of 12% is deemed agreed. Should premature payment of the fee be agreed upon on in the order confirmation, this shall be considered to be part of the Contract. In the event of non-payment by the due date, the Agency has the right to employ the performers elsewhere. Furthermore a penalty of 30% of the agreed fee shall apply. The Agency is entitled to claim full reimbursement of any advance costs which pertain to the work in hand. In the event of non-payment of the invoice within one month, a single written reminder will be sent. Should payment not be effected with eight days and the outstanding amount not transferred onto the given bank account, the case shall be handed over to a debt collection agency with all costs to be borne by the Client.
8.2. The Client agrees to bear all costs and expenditures associated with the collection of receivables including but not limited to collection fees or other expenses required for appropriate litigation.
8.3. In the case of a default in payment by the Client the Agency may declare all services and partial services performed within the scope of other Contracts with the Client as payable immediately.
8.4. The Client is not entitled to set off its receivables against the Agency’s receivables unless the Client’s receivables have been have been accepted in writing by the Agency or have been proven as valid by way of a court ruling. The Client is not entitled to a right of retention.
8.5. The following penalties shall apply to a cancellation of Contract:
50% 14 days before the event/guest performance
80% 13-6 days before the event/guest performance
100% after the 5th day before the event/guest performance
The following cancellation conditions shall apply to the Christmas season (Nov. 20.- Dec. 31) :
50% 60 days before the event/guest performance
80% 59-31 days before the event/guest performance
100% as of 30 days before the event/ guest performance
- Pitch / Presentations
9.1. For its attendance at presentations, the Agency will charge an appropriate fee which will at least cover all personnel and material expenses incurred by the Agency for the presentation, and the cost of any contracted external services.
9.2. If the Agency fails to receive an order following the presentation, then all services provided by the Agency, in particular the presentation material and its content, remain the property of the Agency; the client is not entitled to continue to use them in any form whatsoever; indeed the material should be returned immediately to the Agency. It is prohibited for presentation material to be passed on to third parties or to be published, reproduced, disseminated or otherwise utilized without explicit permission from the Agency.
9.3. Furthermore, the Client shall not be entitled to utilize the ideas and concepts developed in the course of presentations regardless, regardless of whether such ideas and concepts are protected by copyright. By paying the presentation fee the customer does not acquire any exploitation and usage rights to the services presented.
9.4. If the ideas and concepts for publicity projects which were shown during a presentation are not used in publicity material produced, by the Agency, then the Agency is entitled to use those ideas and concepts elsewhere.
- Protection of Ownership and Copyright Protection
10.1. All services and parts thereof provided by the Agency including those provided within presentations (e.g. suggestions, ideas, sketches, preliminary drafts, concepts, negatives, slides, digital photos), as well as individual work pieces and originals of drafts shall remain the property of the Agency and may be reclaimed by the Agency at any time – especially in the event of contract termination. By paying the agreed fee the Client acquires only the right of use (including duplication) for the agreed-upon purpose and scope of use. Unless there is a separate agreement with the Agency, the Client may only use the services provided by the Agency, exclusively in Austria, for the duration of the Agency contract. In order to be assigned rights of use and exploitation rights, all invoices issued by the Agency must be fully paid in advance.
10.2. Changes to the services provided by the Agency, such as further development by the Client or the Client’s subcontractor shall require the explicit prior approval of the Agency and, if such services are protected by copyright, of the author.
10.3. The Agency must approve the usage of Agency work that exceeds the originally agreed-upon purpose and scope – irrespective of whether the services are protected by copyright. In such cases, the Agency and the author shall be entitled to a reasonable separate remuneration.
10.4. Following contract termination, the Agency’s written approval shall be required for the usage of Agency work or means of advertising for which the Agency has developed conceptual and creative proposals, irrespective of ownership copyright.
11.1. The Agency is entitled to refer to itself, and to the creator of the given material where applicable, on all publicity material and in all publicity campaigns, without Client entitlement to compensation claims.
11.2. Subject to the possibility of written revocation at any time by the Client, the Agency shall be entitled to refer to its existing business relationship with the Client in its own advertising media and publications, including but not limited to on its website, using the Client’s name and logo.
- Guarantee and Compensation for Damages
12.1. The Client shall assert and substantiate any claims promptly and in written form, no later than within three days following services provided by the Agency. In the absence of any contractual provision to the contrary, in the event of justified and timely claims, the Client shall be entitled to rectification or replacement of the Agency’s services.
12.2. In the event of a justified notice of deficiencies, the said deficiencies shall be remedied within a reasonable period of time, whereby the Client shall enable the Agency to undertake all measures necessary for examination and remedy of the said deficiencies. The Agency shall be entitled to refuse rectification of the service if this is impossible or associated with, or associated with unreasonably high cost and time outlay for the Agency.
12.3. A reversal of the burden of proof pursuant to Section 924 of the Austrian Civil Code (ABGB) to the detriment of the Client is excluded. Existence of deficiency at the time of handover, the point in time that the deficiency was found and the timeliness of the claim must be proven by and are the responsibility of the Client.
12.4. Claims for compensation of damages by the Client, including but not limited to delay, impossibility of performance of services, positive breach of an obligation, defective or incomplete supply or services, fault in the formation of contract (culpa in contrahendo), consequential damages caused by a defect, or due to unlawful acts shall be excluded to the extent unless that is can be proven that these are due to intent or gross negligence on the part of the Agency.
12.5. Any claim for compensation of damages can only be asserted within six months of discovery of the damages and the damaging party.
12.6. Claims for compensation shall be limited to the amount of the contract value, excluding taxes.
13.1. The Agency will carry out the work assigned to it in compliance with generally recognized legal principles and shall point out any discernible risks to the Client in a timely manner. Any liability on the part of the Agency for claims asserted against the Client or against the Agency as a result of advertising measures (use of a trademark) are expressly excluded herewith, provided that the Agency has met its obligation; in particular the agency (KM) accepts no liability for the costs of any trial, the client’s own legal costs or the cost of passing judgment or for any claims for compensation or similar claims by external or third parties.
13.2. The agency is only liable under the law for damages if its intent or gross negligence can be proven. Liability for slight negligence is excluded. The burden to prove gross negligence shall lie with the aggrieved party.
- Proper Law
The legal relationship between the Client and the Agency shall be governed by and construed in accordance with the laws of Austria, excluding any and all principles on conflicts of law in international Contracts. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply here and are expressly excluded.
- Place of Fulfilment and Jurisdiction
15.1. The place of fulfilment shall be the location of the Agency.
15.2. The place of jurisdiction for both parties for all disputes arising directly or indirectly from the contractual relationship shall be the local and competent Austria