ADVERTISING AGENCY DMP
Digital Motion Picture Data Processing GmbH
(This is a translation of the German original, which is legally binding)
Fürstenstrasse 13, 2344 Maria Enzersdorf, Austria
Managing Directors Janine Wald, Michael Wald
phone +43 2236 3840 41 / fax +43 1 253 30338092 / email email@example.com
FN 221.307b, Commercial Court Vienna / UID ATU54245703
Bank account DIE ERSTE BANK / account number 03855554 / BLZ 20111
BIC GIBAATWWXXX / IBAN AT202011100003855554
Our website (agentur-dmp) can usually be used without providing personal data. Insofar as personal data (e.g. name, address or e-mail addresses) is collected on our website, this is always done on a voluntary basis as far as possible. This data will not be passed on to third parties without your express consent.
We would like to point out that data transmission on the Internet (e.g. when communicating by e-mail) can have security gaps. A complete protection of the data against access by third parties is not possible.
The use of contact data published as part of the imprint obligation by third parties to send unsolicited advertising and information material is hereby expressly prohibited. The site operators expressly reserve the right to take legal action in the event of unsolicited advertising being sent, such as spam e-mails.
GENERAL TERMS AND CONDITIONS OF
Advertising agency dmp, Digital Motion Picture Datenverarbeitungs GmbH (hereinafter referred to as dmp)
§ 1 SCOPE
1.1 dmp 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 supplementary agreements with the customer are only effective if they are confirmed in writing by Dmp.
1.3 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.
1.4 Dmp’s offers are subject to change and non-binding.
§ 2 CONCLUSION OF CONTRACT
2.1 The basis of the business relationship is the respective contract, which specifies the defined scope of services as well as the fees or consideration on the part of the customer. Assurances made by dmp or its representatives are only valid if they are also confirmed in writing.
§ 3 FEE, RETENTION OF TITLE AND PAYMENT
3.1 The amount of the fee is shown on the one hand in the applicable fee guidelines of dmp and applies if no other prices are offered in the offer. All prices are exclusive of sales tax. With the conclusion of the contract, the customer confirms their knowledge and appropriateness. In the absence of an agreement in individual cases, dmp is entitled to a fee at the usual market rate for the services provided and the transfer of the copyright and trademark rights of use.
3.2 Changes to orders or additional orders will be invoiced in accordance with dmp’s applicable fee guideline or based on other offers accepted by the customer. All services provided by dmp that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by Dmp are to be reimbursed by the customer.
3.3 dmp’s fee claim arises for each service rendered. This also applies to services provided by dmp that cannot be implemented as intended for reasons for which it is not responsible. Cost estimates by Dmp are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by Dmp by more than 15%, Dmp 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%, a separate agreement is not required. Exceeding the cost estimate is deemed to have been approved by the customer from the outset.
3.4 dmp is entitled to demand payments on account both for the agreed fee and for cash expenses. For project orders, the first 50% of the fee is due when the order is placed and the remaining half upon completion of the project. Appropriate payments on account are due for cash expenses when the order is placed.
3.5 The fee is due for payment immediately upon 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 object of purchase or the goods delivered by dmp remain the property of dmp until the purchase price and all associated costs and expenses have been paid in full. In the event of even a partial default in payment, we are entitled to collect the goods without the consent of the buyer. In the event of late payment, dmp is entitled to charge the necessary reminder and collection costs as well as interest on arrears at the rate of 12% p.a. This also includes the costs of two reminder letters at the usual market rate and a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected. dmp is entitled to transfer the dunning and debt collection process to professional party representatives, whereby the costs in this case are determined according to the Austrian Lawyers’ Tariff Act. If the customer defaults on payment, Dmp can make all services and partial services rendered within the framework of other contracts concluded with the customer due immediately. Furthermore, Dmp is not obliged to provide further services until the outstanding amount has been settled. If payment in installments was agreed, Dmp 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).
3.6 Dmp shall be entitled to the agreed fee for all work performed by Dmp which, for whatever reason, is not carried out by the customer. The offsetting provision of § 1168 AGBG is excluded. 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 Dmp immediately.
§ 4 PRESENTATIONS
4.1 Presentations by dmp will be compensated with an appropriate fee in accordance with the applicable fee guideline. If no contract is concluded after the presentation, the presentation documents must be returned to dmp immediately. Any use on the occasion of the presentation of services rendered, in particular ideas or rough concepts, is not permitted, regardless of copyright.
4.2 If ideas and concepts for the solution of communication tasks brought in during a presentation are not used in advertising material designed by dmp, then dmp is entitled to use the ideas and concepts presented elsewhere.
4.3 If the presentation leads to an order being placed, the presentation fee will be deducted from the final fee. Passing on presentation documents to third parties and publishing, duplicating or distributing them is not permitted without the written consent of dmp.
§ 5 PROPRIETARY RIGHTS AND COPYRIGHT PROTECTION
5.1 All services provided by dmp remain their unrestricted property. Documents made available can be requested back at any time – especially in the event of contract termination or termination. Unexecuted documents are to be handed over to dmp immediately upon request. For the rest, delivered goods remain their property until they have been paid for in full.
5.2 By paying the fee in full, the customer only acquires the right to use the services provided for the agreed purpose and to the agreed extent of use. Unless otherwise agreed, the customer may only use the services of dmp himself, exclusively in Austria and only for the duration of the contractual relationship.
5.3 The consent of dmp is required for the use of services or advertising material after the end of the contract. For this purpose, dmp is entitled to reasonable remuneration, which is broken down according to the duration and scope of further use.
§ 6 LABELLING
dmp is entitled to refer to itself or the author in all advertising materials and measures used, without the customer being entitled to a fee for this. Subject to the customer’s written revocation, which is possible at any time, Dmp is entitled to refer to the existing 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).
§ 7 CUSTOMER'S OBLIGATION TO VERIFY
7.1 All services provided by dmp (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and released within three working days of receipt by the customer. If they are not released in good time, they are deemed to have been approved by the customer.
7.2 All services provided by dmp that are effective externally (e.g. posters, proofs, etc.) must be checked by the customer and approved within one day. If no declaration of any kind is received from the customer within this period, the implementation is deemed to have been approved by the customer.
7.3 The customer must check the legal, competition and labeling law admissibility of all services of dmp himself. An external legal examination is only initiated upon written request by the customer, who has to bear the associated costs. He will only approve advertising measures proposed by dmp if he has assured himself that they are harmless in terms of competition or labeling law or if he is willing to bear the risk associated with the implementation of the advertising measure or the use of the label himself.
§ 8 EVENTS
8.1 Failure to meet deadlines only entitles the customer to assert his statutory rights if a grace period of at least 14 days, granted after a written reminder, has elapsed without being used. Any resulting claims from the titles of warranty or damages only exist in the case of intent or gross negligence on the part of dmp. Unavoidable or unforeseeable events – in particular delays on the part of their representatives – do not result in any consequences of delay.
8.2 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 dmp.
8.3 If the delivery/service of dmp is delayed for reasons for which it 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 dmp are entitled to withdraw from the contract.
§ 9 WARRANTY AND INDEMNIFICATION
9.1 The customer must submit and justify any complaints to dmp in writing within 5 days after the service has been rendered. Otherwise the service is considered approved. If the complaint is justified and made in good time, the customer has the right to improve the service. Dmp will rectify the defects within a reasonable period of time, whereby the customer enables Dmp to take all measures necessary for the examination and rectification of defects. Dmp is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for Dmp. In this case, the customer is entitled to the 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. The customer is only entitled to claims for a reduction in payment or cancellation if dmp’s attempts to remedy the defects have failed even after one month.
9.2 Any liability on the part of dmp for any damage is mutually excluded, unless dmp can be proven to have acted with intent or with gross negligence in breaching the main contractual obligations. The customer’s right to a warranty remains unaffected in accordance with these General Terms and Conditions. Claims for damages by the customer for consequential damages are excluded in any case.
9.3 dmp expressly does not provide any guarantee in the event that a service provided by it does not achieve the desired success or at all.
9.4 The customer is also obliged to check the documents (photos, logos, etc.) made available for the execution of the order for any copyrights, trademark rights or other rights of third parties. Dmp is not liable for violations of such rights. If claims are made against Dmp for such an infringement of rights, the customer shall indemnify and hold Dmp harmless; he has to compensate her for all disadvantages that arise from claims made by third parties.
9.5 dmp is entitled at any time to reject or remove materials, documents, etc. made available by the customer and left for processing, which violate applicable law or for which there is a reasonable suspicion in this regard, without the customer being entitled to any claims of any kind develop.
9.6 The customer is solely responsible for compliance with legal, in particular competition and trademark law, or professional law provisions for advertising measures that are implemented (cf. § 7.2). Any liability on the part of dmp is therefore excluded. The customer declares that he will indemnify and hold harmless dmp for any claims by third parties based on such a violation.
§ 10 liability and product liability
10.1 In cases of slight negligence, liability on the part of Dmp 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 to defective or incomplete performance. The injured party has to prove the existence of gross negligence.
10.2 Any liability on the part of Dmp for claims made against the customer on the basis of the service provided by Dmp (e.g. advertising measure) is expressly excluded if Dmp has fulfilled its obligation to inform or if such was not recognizable to it, with slight negligence no harm. In particular, Dmp 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 Dmp harmless in this regard.
10.3 Claims for damages by the customer lapse six months after knowledge of the damage; but in any case after three years from the infringement act of the Dmp. Claims for damages are limited to the amount of the net order value.
§ 11 Data protection (optical emphasis according to case law)
The customer expressly agrees that Dmp automatically determines, stores and processes the data provided by the customer (name, address, e-mail, credit card data, data for account transfer) for the purpose of fulfilling the contract and supporting the customer as well as for its own advertising purposes . The client agrees that electronic mail will be sent to him for advertising purposes until further notice.
§ 12 External services / commissioning third parties
12.1 Dmp is entitled, at its own discretion, to perform the service itself, to use expert third parties as vicarious agents for the provision of contractual services and/or to substitute such services (“external service”).
12.2 The commissioning of third parties within the framework of an external service is carried out either in their own name or in the name of the customer, but in any case on account of the customer. Dmp will carefully select this third party and ensure that it has the necessary professional qualifications.
12.3 Insofar as Dmp commissions necessary or agreed external services, the respective contractors are not vicarious agents of Dmp.
§ 13 TERMINATION OF CONTRACT
13. The contract ends with its contractually determined term without the need for a notice of termination. If the contract was concluded for an indefinite period, it can be terminated by either party with three months’ notice to the end of the respective month. An immediate termination of the contract for an important reason remains unaffected.
14.1 dmp promises the customer secrecy about all matters that become known to it in connection with their work and are not intended for the public. It will ensure that this confidentiality obligation is also met by its employees and agents. This duty of confidentiality also applies after termination of the contract.
14.2 However, this contractual duty of confidentiality does not apply in the context of court proceedings or towards a professional party representative who is obliged to maintain confidentiality, in particular in a judicial or extrajudicial dispute with the customer (e.g. fee lawsuit), insofar as this is necessary to protect the rights of dmp.
14.3 Irrespective of this duty of confidentiality, dmp is permanently and irrevocably entitled to include the customer and, if necessary, a brief description of the service provided for him in its reference list and to use this information for advertising and presentation purposes in any fair way, especially on the Internet.
§ 15 POWER OF ATTORNEY
15. The customer authorizes dmp to commission the deliveries or services (e.g. photos, printed matter, trademark registrations, etc.) required for the implementation of agreed PR or advertising concepts from authorities or external professionals at standard market conditions in its name and on its account admit.
§ 16 FINAL PROVISIONS
16.1 The customer is not entitled to offset counterclaims against claims of dmp or to withhold payments citing defects. A customer may only offset against claims that have been expressly recognized by dmp or have been legally established, or assert a right of retention.
16.2 Place of performance and place of jurisdiction is the registered office of dmp. Only Austrian law. In the case of violations of industrial property rights abroad, however, the standard that is more favorable for dmp applies.
16.3 Changes, additions and ancillary agreements to these GTC or the GRAPHIC and advertising contract as well as assurances of any kind must be in writing to be effective. This also applies to the agreement to deviate from this formal requirement.