of mrkt’in by Klaus Giller e.U.
Finkensteinweg 2/3, 3100 Sankt Poelten, Austria
1. Applicability; Conclusion of contract
1.1 mrkt’in by Klaus Giller e.U. (hereinafter "mrkt’in") shall provide its services exclusively based on the following General Terms and Conditions (GTC). They shall apply to all legal relationships between mrkt’in and the Customer, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, i.e. B2B transactions.
1.2 The version applicable at the time of conclusion of a contract shall be relevant. Deviations from these GTC and other supplementary agreements with the Customer shall only be effective if they have been confirmed by mrkt’in in writing.
1.3 Terms and conditions of the Customer, if any, shall not be accepted, even if mrkt’in knows them unless expressly agreed otherwise in writing on a case-by-case basis. Mrkt’in expressly objects to the GTC of the Customer. No other objection of mrkt’in to the Customer's GTC shall be required.
1.4 The Customer shall be informed about amendments to the GTC; they shall be deemed agreed unless the Customer objects to the amended GTC in writing within 14 days; in the information, the Customer will be expressly informed about the consequence of silence on his part.
1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded based on the same shall not be affected. The ineffective provision shall be replaced by an effective provision that comes as close as possible to the meaning and purpose of the ineffective one.
1.6 mrkt’in's offers shall be subject to change without notice and non-binding.
2. Social Media Channels
Before an order is placed mrkt’in expressly points out to the Customer that providers of "social media channels" (e.g. Facebook; hereinafter referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotional appearances for any reason whatsoever. Accordingly, Providers are not obliged to forward content or information to users. Thus, there is a risk, which cannot be calculated by mrkt’in, that advertisements or promotional appearances are removed for no reason. Although in the case of a complaint of a different user Providers do offer an opportunity to reply, the content will be immediately removed also in that case. In that case restoring the original, lawful condition may take some time. Mrkt’in works based on the Providers' terms and conditions of use, on which it has no influence, and also makes them the basis of Customer orders. By placing the order the Customer expressly acknowledges that those terms and conditions of use (co-)determine the rights and duties of a contractual relationship if any. Mrkt’in intends to execute the Customer's order to the best of its knowledge and belief and to comply with the policies of "social media channels". Due to the terms and conditions of use that are currently applicable and the fact that every user can easily allege a violation of the law with the aim that contents will be removed, mrkt’in cannot guarantee that the ordered campaign can be retrieved at any time.
3. Protection of Concepts and Ideas
If a potential Customer has already invited mrkt’in beforehand to develop a concept and if mrkt’in accepts this invitation before the conclusion of the principal contract, the following shall apply:
3.1 By the invitation and acceptance of the invitation by mrkt’in the potential Customer and mrkt’in enter into a contractual relationship ("pitching contract"). That contract will also be based on the GTC.
3.2 The potential Customer acknowledges that already by developing a concept mrkt’in will render cost-intensive services, even though the Customer himself has not taken on any performance duties yet.
3.3 To the extent that they reach the level of originality required for copyright protection the linguistic and graphic parts of the concept are protected by the Austrian Copyright Act [Urheberrechtsgesetz]. The potential Customer is not permitted to use or edit those parts without mrkt’in's consent due to the Austrian Copyright Act alone.
3.4 Furthermore, the concept contains ideas that are relevant to advertising which does not reach the level of originality required for copyright protection and is thus not protected by the Austrian Copyright Act. Such ideas are generated at the beginning of every creative process and may be defined as the creative spark for all subsequent work results and, thus, as the origin of the marketing strategy. Accordingly, those elements of the concept are protected which are unique and characterize the marketing strategy. For this agreement, ideas shall in particular mean advertising slogans, advertising texts, graphics and illustrations, advertising means, etc., even if they do not reach the level of originality required for copyright protection.
3.5 The potential Customer undertakes not to exploit or have exploited commercially and/or use or have used the creative advertising ideas which mrkt’in presented as part of the concept in any context other than the corrective of a principal contract to be concluded at a later time.
3.6 If the potential Customer thinks that mrkt’in presented ideas to him which he already had before the presentation, he shall notify mrkt’in thereof via e-mail within 14 days of the day of the presentation and include means of evidence which allow a chronological allocation.
3.7 Otherwise the Parties will assume that mrkt’in has presented an idea to the potential Customer which is new to him. If the Customer uses the idea, it has to be assumed that mrkt’in received remuneration, therefore.
3.8 The potential Customer may be released from his duties under this Clause if he pays a reasonable compensation plus 20% VAT. Such release shall become effective only after receipt of the full compensation payment by mrkt’in.
4. Scope of services; Order processing; Customer's duties to co-operate
4.1 The scope of the services to be rendered shall be based on the specifications of mrkt’in Agreement or mrkt’in's acknowledgment of order, if any, and the briefing report, if any ("Offer Documents"). Subsequent modifications of the services shall be subject to mrkt’in's written confirmation. When executing the order mrkt’in shall be free in its discretion within the framework specified by the Customer.
4.2 All services of mrkt’in (including but not limited to all preliminary designs, sketches, final drawings, proofs, blueprints, copies, colored prints, and electronic files) shall be checked by the Customer and released within three working days of receipt by the Customer. If they are not released within that period, they shall be deemed approved by the Customer. After that period has expired with no reply from the Customer they shall be deemed accepted by the same.
4.3 The Customer shall make accessible to mrkt’in completely and in time all information and documents required for rendering the service. The Customer shall notify mrkt’in of all circumstances that are relevant to the execution of the order, even if they become known only in the course of execution of the order. The Customer shall bear the costs incurred because work has to be done again by mrkt’in or is delayed because of his incorrect, incomplete, or subsequently modified specifications.
4.4 In addition, the Customer is obliged to clear the documents made available by him for the execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks, or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the Customer, mrkt’in shall not be liable (at least as regards the relationship between mrkt’in and the Customer) for an infringement of such rights of third parties by documents made available by the Customer. If mrkt’in is held liable for any infringement of such rights, the Customer shall indemnify and hold harmless mrkt’in and shall compensate mrkt’in for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The Customer undertakes to support mrkt’in in defending claims of third parties if any. For this purpose, the Customer shall provide mrkt’in with all documents without request.
5. External services; Commissioning of third parties
5.1 Mrkt’in shall be entitled at its own discretion to render the services itself, to employ expert third parties as agents [Erfüllungsgehilfen as defined by Section 1313a of the Austrian General Civil Code [ABGB]] and/or to commission a third party to render such services ("External Service").
5.2 Commissioning of third parties in connection with an External Service shall be done either in mrkt’in's own name or in the name of the Customer. Mrkt’in shall select the relevant third party with care and ensure that it is appropriately qualified.
5.3 The Customer shall assume obligations vis-à-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the agency contract for cause.
6.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by mrkt’in in writing.
6.2 If the delivery/service of mrkt’in is delayed for reasons for which mrkt’in is not responsible, such as, e.g. events of force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays continue for more than two months, the Customer and mrkt’in shall be entitled to rescind the contract.
6.3 If mrkt’in is in default, the Customer may only rescind the contract after having granted mrkt’in a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the Customer for damages on the ground of non-performance or default shall be excluded unless intent or gross negligence can be proved.
7. Early termination
7.1 Mrkt’in shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where
(a) provision of a service becomes impossible for reasons for which the Customer is responsible or is further delayed even though the Customer was granted a grace period of 14 days;
(b) the Customer continues to violate material obligations under this contract, such as, e.g. the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days.
(c) legitimate concerns exist regarding the Customer's credit standing and, upon mrkt’in's request, the Customer fails to make advance payments or to furnish suitable security prior to provision of the service by mrkt’in;
7.2 The Customer shall be entitled to terminate the contract for cause without having to grant a grace period. A cause shall be, in particular, where mrkt’in repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.
8.1 Unless otherwise agreed mrkt’in's entitlement to fees shall arise for any specific service once the same has been rendered. Mrkt’in shall be entitled to ask for advances to cover its expenses. From a contract volume involving a (an annual) budget of EUR 10.000 or contracts extending over a prolonged period of time, mrkt’in shall be entitled to render interim accounts or issue advance invoices or demand payments on account.
8.2 The fees shall be stated as net fees plus statutory value added tax. If in a specific case no agreement on fees has been concluded, mrkt’in shall be entitled to fees at market rates for the services rendered and for transfer of copyrights and marks.
8.3 All services of mrkt’in which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by mrkt’in shall be reimbursed by the Customer.
8.4 Cost estimates provided by mrkt’in shall be non-binding. If it becomes clear that the actual costs will exceed mrkt’in's written cost estimate by more than 15 per cent, mrkt’in shall advise the Customer of such higher costs. The increase in costs shall be deemed accepted by the Customer if the Customer does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the Customer from the beginning.
8.5 If the Customer unilaterally modifies or cancels work ordered without involving mrkt’in and notwithstanding other regular support from the same, the Customer shall pay mrkt’in for the services provided by then according to the agreement on fees and shall reimburse all costs incurred. Unless work is cancelled on the ground of a breach of mrkt’in's duties by gross negligence or wilful intent, the Customer shall, in addition, pay mrkt’in the total fee (commission) agreed for that contract, and the allowance [Anrechnungsvergütung] as defined in Section 1168 of the Austrian Civil Code [ABGB] shall be excluded. Furthermore, mrkt’in shall be indemnified and held harmless from and against any third-party claims, in particular of mrkt’in's contractors. By payment of the fees the Customer shall acquire no rights to use work already carried out; concepts, drafts and other documents which were not implemented shall rather be returned to mrkt’in without delay.
9. Payment; Retention of title
9.1 The fee shall be due for payment immediately upon receipt of the invoice without any deductions, unless special payment terms are agreed in writing on a case-by-case basis. The same shall apply to all cash and other expenses charged. Mrkt’in shall retain title to the goods delivered by it until full payment of the fee including all ancillary liabilities.
9.2 In the case of payment default of the Customer statutory default interest at the rate applicable to business-to-business transactions will be charged. In the case of default the Customer also undertakes to reimburse mrkt’in the dunning and collection charges incurred to the extent they are necessary for appropriate pursuit of the claim. This shall in any case include the costs of two dunning letters at the market fee of currently at least EUR 20 per letter plus those of one dunning letter of a lawyer who has been instructed to collect the receivables outstanding. Assertion of further rights and claims shall remain unaffected.
9.3 If the Customer is in default of payment, mrkt’in may call for immediate payment of services or partial services rendered under different contracts concluded with the Customer.
9.4 Furthermore, mrkt’in is not obliged to render other services until payment of the amount outstanding (right to withhold services). The obligation to pay the fees shall not be affected.
9.5 If payment by instalments has been agreed, mrkt’in reserves the right to demand immediate payment of the total debt outstanding if instalments or ancillary claims are not paid in time (acceleration clause).
9.6 The Customer shall not be entitled to set off claims of mrkt’in against his own claims unless the Customer's claim has been recognised by mrkt’in in writing or ascertained by court.
10. Title and copyright
10.1 Mrkt’in shall retain title to all services of mrkt’in, including services in connection with presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides), including parts thereof, as well as the individual workpieces and original designs and mrkt’in may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees the Customer shall acquire the right to use the services for the designated purpose agreed. Unless otherwise agreed the Customer shall, however, use mrkt’in's services exclusively in Austria. Acquisition of rights to use and exploit mrkt’in's services shall in any case be subject to full payment of the fees charged by mrkt’in for the same. If the Customer uses mrkt’in's services already prior to that time, such use shall be based on a loan relationship that may be revoked at any time.
10.2 Modifications and/or editing of services of mrkt’in, including but not limited to further development of the same by the Customer or third parties working for the Customer, shall only be permitted with the express consent of mrkt’in and, to the extent that services are protected by copyright, of the author.
10.3 Use of mrkt’in's services beyond the originally agreed purpose and scope of use shall be subject to mrkt’in's consent irrespective of whether such service is protected by copyright or not. In consideration thereof mrkt’in and the author shall be entitled to a separate reasonable fee.
10.4 After expiration of mrkt’in Agreement use of services of mrkt’in and/or advertising means for which mrkt’in developed concepts or designs shall also be subject to mrkt’in's consent irrespective of whether the service is protected by copyright or not.
10.5 In the first year after termination of the contract mrkt’in shall be entitled to the full agency fees agreed in the expired contract for any use described in paragraph 4. In the second and third year after expiration of the contract mrkt’in shall only be entitled to half or one fourth of the consideration agreed in the contract. From the fourth year after termination of the contract no agency fees shall be payable.
10.6 The Customer shall be liable to mrkt’in for any unlawful use in the amount of twice the reasonable fees for such use.
11. Identification marks
11.1 Mrkt’in shall be entitled to make reference to mrkt’in and the author, if applicable, on all advertising means and in any advertising and promotion measures, without the Customer being entitled to any payment in this respect.
11.2 Mrkt’in shall be entitled to make reference to its current or former business relationship with the Customer on its own advertising media, including but not limited to its website, by referring to the Customer's business name and business logo, with the Customer having the right to revoke his consent in writing at any time.
12.1 The Customer shall notify any defects immediately and in any case within eight days of delivery/provision of the service by mrkt’in and hidden defects not later than eight days after they were identified in writing including a description of the defect; otherwise the service shall be deemed accepted. In that case assertion of any warranty claims or claims for damages as well as the right to assert claims on account of mistake shall be excluded.
12.2 In the case of a justified and timely notification of defects the Customer shall be entitled to improvement or replacement of the delivery/service by mrkt’in. Mrkt’in shall repair the defects within a reasonable period of time and the Customer shall enable mrkt’in to take all measures which are necessary for examination and repair of the defects. Mrkt’in shall be entitled to refuse improvement of the service if such improvement is impossible or if mrkt’in were to incur disproportionately high costs. In that case the Customer shall be entitled to cancel the contract or get a fee reduction as provided for by law. In the case of improvement the Customer shall send the defective (physical) item at his cost.
12.3 The Customer shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. Mrkt’in is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the Customer, if any, mrkt’in shall not be liable for lawfulness of contents if they were advised or accepted by the Customer.
12.4 The warranty period shall be six months as of delivery/service. The right of recourse to mrkt’in as defined in Section 933 b (1) ABGB shall be forfeited one year after delivery/service. The Customer shall not be entitled to withhold payments on the ground of complaints. The presumption rule [Vermutungsregel] of Section 924 ABGB shall be excluded.
13. Liability and product liability
13.1 In cases of slight negligence liability of mrkt’in and its employees, contractors or other agents [translator's note: Erfüllungsgehilfen as defined by Section 1313a ABGB] ("People") for damage to property or pecuniary loss suffered by the Customer shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that mrkt’in's liability is excluded or limited this shall also apply to personal liability of its People.
13.2 Any liability of mrkt’in for claims asserted vis-à-vis the Customer on the ground of services rendered by mrkt’in (e.g. advertising and promotion measures) shall be expressly excluded, provided that mrkt’in complied with its duty to inform or if it was unable to see such a duty, even due to slight negligence. Mrkt’in shall, in particular, not be liable for costs of legal proceedings, lawyer's fees of the Customer or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Customer shall indemnify and hold harmless mrkt’in in this respect.
13.3 Claims of the Customer for damages shall be forfeited six months after knowledge of the damage and in any case three years after mrkt’in's infringement. Claims for damages shall be limited to the net contract value.
14. Data protection (visual emphasis according to court rulings)
The Customer agrees that his personal data, namely name, occupation, date of birth, Business Register Number, powers to represent the company, contact person, business address and other addresses of the Customer, phone number, fax number, e-mail address, bank details, credit card details, VAT number) may be collected, stored and processed electronically for the purpose of performance of the contract and support of the Customer and for mrkt’in's own advertising and promotion purposes, for example by sending him offers, advertising brochures or newsletters (in hard copy or electronic form) and for the purpose of making reference to the current of former business relationship with the Customer. The Customer agrees to be sent electronic mail for advertising purposes until further notice.
Such consent may be revoked in writing via e-mail, fax or letter to the contact details stated in the header of these GTC at any time.
15. Applicable law
The Agreement and all mutual rights and duties resulting therefrom as well as any claims between mrkt’in and the Customer shall be subject to Austrian substantive law, and its conflicts of laws rules and UN Sales Law shall be excluded.
16. Place of performance and place of jurisdiction
16.1 The place of performance shall be the registered office of mrkt’in. In the case that goods are shipped the risk shall pass to the Customer once mrkt’in has delivered the goods to the carrier chosen by it.
16.2 The agreed place of jurisdiction for all legal disputes arising between mrkt’in and Customer in connection with this contractual relationship shall be the court having jurisdiction over the subject-matter and mrkt’in's registered office. Notwithstanding the foregoing mrkt’in shall be entitled to sue the Customer at his general place of jurisdiction.
16.3 If only the masculine form is used herein for describing natural persons it shall equally refer to women and men. If a specific person is referred to, the respective gender-specific form shall be used.