"General Terms and Conditions of PROFarm Consulting GmbH for consulting services provided by business consultants.
1. General Basis / Scope
1.1 These general terms and conditions apply exclusively to all legal transactions between the client and the contractor (PROFarm Consulting GmbH). The valid version is the one in effect at the time of contract conclusion.
1.2 These general terms and conditions also apply to all future contractual relationships, even if no specific reference is made to them in supplementary contracts.
1.3 Contrary general terms and conditions of the client are invalid unless explicitly accepted in writing by the contractor.
1.4 In the event that individual provisions of these general terms and conditions are or become invalid, this shall not affect the validity of the remaining provisions and contracts concluded under these provisions. The invalid provision shall be replaced by a valid provision that comes closest to its meaning and economic purpose.
2. Scope of the Consulting Assignment / Representation
2.1 The scope of a specific consulting assignment is contractually agreed upon in individual cases. If there is uncertainty about the type and extent of the assignment, it will be agreed upon in the contract. In case of ambiguity or for the benefit of the client, the contractor is authorized to execute the assignment at their own discretion.
2.2 The contractor is authorized to have all or part of their assigned tasks performed by third parties. Payment to the third party is solely the responsibility of the contractor. No form of direct contractual relationship between the third party and the client shall arise.
2.3 The client undertakes not to enter into any business relationship, of any kind, with individuals or companies for three years following the termination of this contractual relationship, who the contractor has used to fulfill their contractual obligations. The client will, in particular, refrain from commissioning these individuals and companies with consulting services similar to those offered by the contractor, without the explicit consent of the contractor.
3. Duty to Inform the Client / Declaration of Completeness
3.1 The client ensures that the organizational conditions at their place of business allow for undisturbed work that promotes the rapid progress of the consulting process.
3.2 The client shall fully inform the contractor about previous and/or ongoing consultations, including in other areas of expertise.
3.3 The client shall ensure that all necessary documents for fulfilling the consulting assignment are provided to the contractor in a timely manner, without any specific request from the contractor, and that the contractor is informed of all events and circumstances relevant to the execution of the consulting assignment. This also applies to all documents, events, and circumstances that become known during the consultant's activities.
3.4 The client shall ensure that their employees and any legally required employee representatives (works council) are informed by the contractor before the commencement of the contractor's activities.
3.5 It is understood that the client shall submit the results of the written reports to the client's tax consultant and, where necessary, the client's attorney for review and confirmation. The client shall inform the contractor of the results of this review.
4. Safeguarding Independence
4.1 The contracting parties pledge mutual loyalty.
4.2 The contracting parties mutually commit to taking all necessary precautions to prevent any endangerment of the independence of third parties engaged and employees of the contractor. This includes offers by the client for employment or the assumption of contracts on their own behalf.
5. Reporting / Reporting Obligation
5.1 The contractor agrees to provide reports on their work, that of their employees, and any third parties hired, according to the client's requirements, as explicitly agreed upon.
5.2 The final report shall be provided to the client, if separately agreed upon, within a reasonable timeframe following the completion of the assignment.
5.3 The contractor shall act independently in creating the agreed work, according to their own discretion and in their own responsibility. They are not bound to a specific place of work or working hours.
6. Protection of Intellectual Property
6.1 Copyrights for works created by the contractor, their employees, and any third parties hired (including offers, reports, analyses, expert opinions, organization plans, programs, performance descriptions, drafts, calculations, drawings, data storage, etc.) remain with the contractor. The client may use the work (works) exclusively for purposes covered by the contract during and after the termination of the contractual relationship, without the right to reproduce and/or distribute the work without the express consent of the contractor. Unauthorized reproduction or distribution of the work does not establish any liability on the part of the contractor, particularly for the accuracy of the work, towards third parties.
6.2 Any violation of these provisions by the client entitles the contractor to immediate termination of the contractual relationship and the assertion of other legal claims, particularly injunction and/or damages.
7. Warranty
7.1 Regardless of fault, the contractor is authorized and obligated to correct any inaccuracies and defects in their performance. The client shall be promptly informed of this.
7.2 This claim of the client expires 6 months after the delivery of the disputed work (report).
7.3 The client is entitled to the free correction of defects if the contractor is responsible for them. In the event of failed correction of any defects, the client is entitled to a reduction in price or, if the performance delivered is of no interest to the client due to the failed correction, the right to rescission. In the case of warranty, correction always takes precedence over a price reduction or rescission.
8. Liability / Compensation
8.1 The contractor is liable to the client for damages – except for personal injury – only in cases of gross negligence (willful intent or gross negligence). This also applies, by analogy, to damages caused by third parties engaged by the contractor. Liability for lost profit, unrealized savings, consequential damages, and indirect damages is excluded. In any case, liability is limited to the insurance sum of the liability insurance.
8.2 Claims for damages by the client may only be asserted in court within six months of knowledge of the damage and the tortfeasor, but no later than within three years of the event that triggers the claim.
8.3 The client must prove that the damage is due to the fault of the contractor.
8.4 If the contractor provides the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor assigns these claims to the client. In this case, the client shall exclusively seek recourse from these third parties.
9. Confidentiality / Data Protection
9.1 The contractor commits to absolute confidentiality regarding all business matters brought to their attention, especially business and trade secrets and all information they receive about the nature, scope, and practical activities of the client.
9.2 The contractor also commits to maintaining confidentiality about the entire content of the work, as well as all information and circumstances that come to their attention in connection with the creation of the work, including client data, toward third parties.
9.3 The contractor is exempt from the confidentiality requirement towards any assistants and representatives they use but must ensure that they fully comply with this requirement and is responsible for their violation, as if it were their own.
9.4 The confidentiality requirement extends indefinitely beyond the end of this contractual relationship.
9.5 The contractor is authorized to process personal data entrusted to them within the scope of the purpose of the contractual relationship. The client assures the contractor that all necessary measures, particularly those under data protection laws, such as consent declarations from the affected parties, have been taken.
9.6 The contractor is authorized to use the client's name as a reference. Naming without Providing Specific Information about Work Carried Out to name, without providing specific information about the work carried out at the client's premises.
10. Fee
10.1 After the completion of the agreed work, the contractor shall receive a fee as per the agreement between the client and the contractor. The contractor is entitled to issue interim invoices in accordance with the progress of the work and request corresponding advances. The fee becomes due upon invoicing by the contractor.
10.2 Incurred cash expenses, expenses, travel costs, etc., shall be reimbursed by the client upon invoicing by the contractor.
10.3 If the execution of the agreed work is omitted for reasons on the part of the client or due to a justified premature termination of the contractual relationship by the contractor, the contractor retains the right to claim a cancellation fee as follows: between 4 and 2 weeks before the agreed commencement of work, 50%, from 2 weeks, 100% of the agreed order amount.
10.4 In the event of non-payment of interim invoices, the contractor is relieved of their obligation to provide further services. However, this does not affect the assertion of further claims resulting from non-payment.
11. Duration of the Contract
11.1 This contract generally ends upon the completion of the project.
11.2 Regardless, the contract may be terminated by either party at any time for important reasons without observing a notice period. Important reasons are, in particular:
- if a contracting party breaches essential contractual obligations, or
- if bankruptcy proceedings are initiated against a contracting party or if the bankruptcy petition is dismissed due to a lack of cost-covering assets.
12. Final Provisions
12.1 The contracting parties confirm that all information in the contract has been provided diligently and truthfully and commit to immediately notifying each other of any changes.
12.2 Changes to the contract and these general terms and conditions require written form; a waiver of this form requirement also requires written form. Verbal collateral agreements do not exist.
12.3 This contract is subject to the substantive law of Austria, excluding the rules of conflict of laws. The place of performance is the location of the contractor's professional office. The court at the contractor's place of business is competent for disputes.
As of November 2020
General Terms and Conditions of PROFarm Consulting GmbH for Services in the Fields of Advertising, Graphic Design, Animation, Filmmaking, and Programming
1. Scope, Conclusion of Contract
1.1 PROFarm Consulting GmbH (hereinafter referred to as "Service Provider") provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Service Provider and the Customer, even if they are not expressly referred to.
1.2 The version valid at the time of the conclusion of the contract is decisive. Deviations from these and any other supplementary agreements with the Customer are only effective if confirmed in writing by the Service Provider.
1.3 Any terms and conditions of the Customer, even if known, are not accepted, unless expressly and in writing otherwise agreed. The Service Provider expressly rejects the Customer's terms and conditions. No further objection to the Customer's terms and conditions by the Service Provider is required.
1.4 Changes to the GTC will be communicated to the Customer and will be deemed agreed upon if the Customer does not object in writing within 14 days; the significance of silence will be explicitly pointed out to the Customer.
1.5 If individual provisions of these General Terms and Conditions are ineffective, this shall not affect the validity of the other provisions and the contracts concluded on their basis. The ineffective provision shall be replaced by an effective provision that comes closest to the meaning and purpose.
1.6 The Service Provider's offers are non-binding.
2. Social Media Channels
Before placing an order, the Service Provider expressly informs the Customer that the providers of "social media channels" (e.g., Facebook, hereinafter referred to as "Providers") reserve the right to reject or remove advertisements and appearances for any reason in their terms of use. Therefore, the Providers are not obliged to forward content and information to users. There is an unpredictable risk that advertisements and appearances may be removed without cause. In the event of a complaint by another user, the Providers do offer the possibility of a counterstatement, but in this case, content is still removed immediately. Re-establishing the original, lawful condition can take some time in this case. The Service Provider works on the basis of these terms of use of the Providers, over which it has no influence, and also applies them to a Customer's order. The Customer expressly acknowledges, with the placement of an order, that these terms of use determine the rights and obligations of any contractual relationship. The Service Provider intends to execute the Customer's order to the best of its knowledge and belief and to comply with the guidelines of "Social Media Channels." However, due to the currently valid terms of use and the simple possibility for any user to claim legal violations and thereby achieve content removal, the Service Provider cannot guarantee that the contracted campaign will be available at all times.
3. Concept and Idea Protection
If the potential Customer invites the Service Provider to create a concept in advance and the Service Provider complies with this invitation before the conclusion of the main contract, the following regulations apply:
3.1 By inviting and accepting the invitation, a contractual relationship ("pitching contract") arises between the potential Customer and the Service Provider. These GTC also form the basis for this contract.
3.2 The potential Customer acknowledges that the Service Provider is already providing costly preliminary services with the development of a concept, even though the potential Customer has not yet assumed any obligations.
3.3 The linguistic and graphic parts of the concept, insofar as they reach the level of a work, are protected by copyright law. Use and modification of these parts without the consent of the Service Provider is not permitted for the potential Customer under copyright law.
3.4 In addition, the concept contains advertising-relevant ideas that do not reach the level of a work 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 ignition spark of everything subsequently created and thus as the origin of a marketing strategy. Therefore, elements of the concept that are unique and give the marketing strategy its characteristic imprint are protected. As ideas within the meaning of this agreement, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., are considered, even if they do not reach the level of a work.
3.5 The potential Customer undertakes to refrain from economically exploiting or having exploited by third parties the creative advertising ideas presented by the Service Provider as part of the concept outside the context of a subsequent main contract.
3.6 If the potential Customer believes that the Service Provider presented ideas that the potential Customer had already conceived before the presentation, the potential Customer must notify the Service Provider of this within 14 days after the day of the presentation by email, citing evidence that allows for a temporal allocation.
3.7 In the opposite case, the contracting parties assume that the Service Provider presented a new idea to the potential Customer.
3.8. Use of the idea by the customer shall be deemed to have been beneficial to the Service Provider. The potential customer may release themselves from their obligations under this clause by payment of a reasonable compensation plus 20% value-added tax. The release shall only take effect upon the Service Provider's full receipt of the compensation payment.
4. Scope of Services, Order Processing, and Customer's Obligations
4.1 The scope of services to be provided is determined by the service description in the Service Provider Contract or any confirmation of order by the Service Provider, as well as any briefing records ("Offer Documents"). Subsequent changes to the scope of services require written confirmation by the Service Provider. Within the framework set by the customer, the Service Provider has creative freedom in fulfilling the order.
4.2 The customer shall review all services provided by the Service Provider (in particular, preliminary drafts, sketches, finished artwork, brush prints, blueprints, copies, color prints, and electronic files) and approve them within three working days of their receipt. If approval is not given in a timely manner, they are considered approved by the customer.
4.3 The customer shall provide the Service Provider with all information and documents necessary for the provision of the service in a timely and complete manner. The customer shall also inform the Service Provider of any circumstances that are relevant to the execution of the order, even if they become known during the execution of the order. The customer shall bear the cost of repeating work by the Service Provider due to incorrect, incomplete, or subsequently changed information provided by the customer or due to delays.
4.4 Furthermore, the customer is obligated to verify any materials provided (photos, logos, etc.) for compliance with potential third-party intellectual property, trademark, or other rights (rights clearance). The customer guarantees that the materials are free from third-party rights and can be used for the intended purpose. The Service Provider is not liable for violations of such third-party rights resulting from materials provided, in case of slight negligence or after fulfilling their duty to warn – at least in the internal relationship with the customer. If the Service Provider is claimed by a third party for such infringement, the customer shall indemnify the Service Provider and compensate all damages, including the cost of reasonable legal representation incurred by the Service Provider. The customer undertakes to support the Service Provider in defending against any claims from third parties by providing all necessary documents.
5. Outsourced Services / Commissioning of Third Parties
5.1 The Service Provider is entitled, at its discretion, to perform the service itself, use knowledgeable third parties as vicarious agents in providing contractual services, and/or substitute such services ("outsourced services").
5.2 The commissioning of third parties as part of outsourced services is carried out either in the name of the Service Provider or in the name of the customer. The Service Provider will carefully select these third parties and ensure that they have the necessary professional qualifications.
5.3 In relation to obligations towards third parties that extend beyond the term of the contract, the customer shall step in. This expressly applies in the event of the termination of the Service Provider Contract for good cause.
6. Deadlines
6.1 Specified delivery or performance dates are, unless expressly agreed as binding, only approximate and non-binding. Binding appointment agreements shall be documented in writing and confirmed in writing by the Service Provider.
6.2 If the Service Provider's delivery/performance is delayed for reasons not within their control, such as force majeure and other unforeseeable events that cannot be prevented with reasonable means, the obligations of performance shall be suspended for the duration and extent of the impediment, and the deadlines shall be extended accordingly. If such delays persist for more than two months, both the customer and the Service Provider are entitled to withdraw from the contract.
6.3 If the Service Provider is in default, the customer can only withdraw from the contract after providing the Service Provider with a written notice of a reasonable grace period of at least 14 days and such notice has passed without success. Claims for damages by the customer due to non-performance or delay are excluded, except in cases of proven intent or gross negligence.
7. Early Termination
7.1 The Service Provider is entitled to terminate the contract with immediate effect for good cause. Good cause shall exist in particular if:
a) The performance of the service becomes impossible or continues to be delayed due to reasons attributable to the customer, or despite a grace period of 14 days being set;
b) The customer continues to violate essential obligations under this contract, such as the payment of a due amount or participation duties, despite written warnings and a grace period of 14 days.
c) There are legitimate concerns about the customer's creditworthiness, and the customer, upon request of the Service Provider, neither makes advance payments nor provides suitable security before the Service Provider's performance.
7.2 The customer is entitled to terminate the contract for good cause without setting a grace period. Good cause shall exist in particular if the Service Provider continues to violate essential provisions of this contract despite a written warning and an appropriate grace period of at least 14 days to remedy the breach.
8. Fee
8.1 If not otherwise agreed, the Service Provider's fee is due for each individual service as soon as it has been rendered. The Service Provider is entitled to request advances to cover their expenses. For orders with a (yearly) budget of €4,000.00 or longer-term projects, the Service Provider is authorized to issue interim invoices or request advance payments.
8.2 The fee is understood to be a net fee plus the statutory value-added tax. In the absence of an agreement in individual cases, the Service Provider is entitled to a fee at the market rate for the services provided and the transfer of intellectual property and trademark rights.
8.3 All services of the Service Provider that are not expressly covered by the agreed fee are remunerated separately. The customer shall reimburse all expenses incurred by the Service Provider.
8.4 Cost estimates by the Service Provider are non-binding. If it is foreseeable that the actual costs will exceed the costs estimated in writing by the Service Provider by more than 15%, the Service Provider will inform the customer of the higher costs. The cost overrun is deemed approved by the customer if the customer does not object in writing within three working days after this notice and at the same time provides more cost-effective alternatives. A separate notice is not required for a cost overrun of up to 15%. The customer expressly agrees to this cost estimate overrun from the beginning.
8.5 For all works of the Service Provider that are not executed for any reason by the customer, the agreed compensation is due to the Service Provider. The offsetting provision of § 1168 of the Austrian Civil Code (ABGB) is excluded. Payment of the fee does not grant the customer any rights of use in works already performed; unexecuted concepts, drafts, and other documents must be returned to the Service Provider without delay.
9. Payment, Retention of Title
9.1 The fee is due for payment immediately upon receipt of the invoice, without any deductions, unless special payment terms have been agreed upon in writing for individual cases. All payments, including the passing on of all out-of-pocket expenses and other costs, remain due until the full payment of the fee, including all ancillary obligations, and are owned by the Service Provider. The goods delivered by the Service Provider remain the property of the Service Provider until full payment of the fee, including all ancillary obligations.
9.2. In the event of the customer's default in payment, the statutory default interest rate applicable to business transactions will be charged. Furthermore, in case of payment default, the customer undertakes to reimburse the Service Provider for the collection and debt recovery costs incurred, to the extent necessary for appropriate legal action. This includes at least the costs of two reminder letters in the customary market amount, currently at least €20.00 per reminder, and one reminder letter from a lawyer engaged for collection. The assertion of further rights and claims remains unaffected.
9.3. In the event of payment default by the customer, the Service Provider may declare due immediately all services and partial services provided within the framework of other contracts concluded with the customer.
9.4. Furthermore, the Service Provider is not obliged to provide further services until the outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected.
9.5. If payment in installments has been agreed upon, the Service Provider reserves the right to demand immediate payment of the entire outstanding debt (loss of term) in case of non-punctual payment of installments or ancillary claims.
9.6. The customer is not entitled to set off their own claims against claims of the Service Provider unless the customer's claim has been acknowledged in writing by the Service Provider or has been established by a court.
10. Ownership Rights and Copyright
10.1. All services of the Service Provider, including those from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, finished artwork, concepts, negatives, slides), including individual parts thereof, remain the property of the Service Provider, as do the individual workpieces and original drafts, and can be reclaimed by the Service Provider at any time, especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use the services for the agreed purpose. Unless otherwise agreed, the customer may use the services of the Service Provider exclusively in Austria. In any case, the acquisition of usage and exploitation rights for services of the Service Provider requires the full payment of the fees invoiced by the Service Provider. If the customer already uses the services of the Service Provider before this time, this use is based on a revocable loan agreement.
10.2. Changes or alterations to the services of the Service Provider, especially their further development by the customer or by third parties acting on behalf of the customer, are only permissible with the express consent of the Service Provider and, if the services are protected by copyright, of the author.
10.3. For the use of services of the Service Provider that goes beyond the originally agreed purpose and scope of use, the consent of the Service Provider is required, regardless of whether these services are protected by copyright. The Service Provider and the author are entitled to a separate, appropriate fee for this.
10.4. For the use of services of the Service Provider or advertising materials for which the Service Provider has developed conceptual or design templates, the consent of the Service Provider is also required after the end of the Service Provider contract, irrespective of whether these services are protected by copyright or not.
10.5. For uses according to section 4, the Service Provider is entitled to the full Service Provider fee agreed in the expired contract in the first year after the contract ends. In the second and third year after the end of the contract, only half or a quarter of the contractually agreed fee is to be paid. From the fourth year after the end of the contract, no more Service Provider fees are to be paid.
10.6. The customer is liable to the Service Provider for any unlawful use in double the amount of the appropriate fee for such use.
11. Labeling
11.1. The Service Provider is entitled to indicate the Service Provider and, if necessary, the author on all advertising materials and in all advertising measures without the customer being entitled to any remuneration for this.
11.2. Subject to the customer's revocation at any time, the Service Provider is entitled to refer to the existing or previous business relationship with the customer (reference notice) on its own advertising materials and, in particular, on its website, by name and company logo.
12. Warranty
12.1. The customer must report any defects immediately, in any case within eight days of delivery/performance by the Service Provider, and, if there are hidden defects, within eight days of discovering them, in writing with a description of the defect; otherwise, the service is considered approved. In this case, claims for warranty and damages, as well as the right to contest due to defects, are excluded.
12.2. In the case of justified and timely notice of defects, the customer has the right to rectification or replacement of the delivery/performance by the Service Provider. The Service Provider will remedy the defects within a reasonable period, and the customer will enable the Service Provider to take all necessary measures for inspection and defect rectification. The Service Provider is entitled to refuse to rectify the performance if it is impossible or if it is associated with a disproportionately high effort for the Service Provider. In this case, the customer has the statutory rights of conversion or reduction. In the case of rectification, the customer is responsible for sending the defective (physical) item at their expense.
12.3. It is also the responsibility of the customer to verify the performance for its legal, in particular, competitive, trademark, copyright, and administrative admissibility. The Service Provider is only obliged to make a basic check of the legal admissibility. In the event of slight negligence or after fulfilling any duty to warn, the Service Provider shall not be liable for the legal admissibility of content if they were specified or approved by the customer.
12.4. The warranty period is six months from delivery/performance. The right of recourse against the Service Provider under § 933b (1) of the Austrian Civil Code (ABGB) expires one year after delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumption regulation of § 924 ABGB is excluded.
13. Liability and Product Liability
3.1 In cases of slight negligence, liability of the service providers and those of their employees, contractors or other vicarious agents ("people") for damage to property 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, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. Insofar as the liability of the service provider is excluded or limited, this shall also apply to the personal liability of its "people".
13.2 Any liability of the service provider for claims made against the client based on the service provided by the service provider (e.g. advertising measure) is expressly excluded if The service provider has fulfilled their duty to inform or such a duty was not apparent to them, whereby slight negligence does not harm. In particular, The Service Provider shall not be liable for litigation costs, Client's own legal fees or costs of judgment publications, as well as for any claims for damages or other claims by third parties; Client shall indemnify and hold harmless The Service Provider in this regard.
13.3 Customer's claims for damages shall expire six months after knowledge of the damage; in any case, however, after three years after the infringement action against the service provider. The amount of claims for damages shall be limited to the net order value.
14. Data Protection
The customer agrees that their personal data, namely name/company, profession, date of birth, commercial register number, power of representation, contact person, business address, and other addresses of the customer, phone number, fax number, email address, bank details, credit card data, and UID number are collected, stored, and processed electronically for the purpose of fulfilling the contract and customer support, as well as for the Service Provider's own advertising purposes, including sending offers, advertising brochures, and newsletters (in paper and electronic form), and for the purpose of indicating the existing or previous business relationship with the customer (reference notice). This consent can be revoked at any time in writing by email, fax, or letter using the contact details provided at the beginning of the General Terms and Conditions.
15. Applicable Law
The contract and all mutual rights and obligations, as well as claims derived from it, between the Service Provider and the customer are subject to Austrian substantive law, excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).
16. Place of Performance and Jurisdiction:
16.1. The place of performance is the registered office of the Service Provider. The risk passes to the customer as soon as the Service Provider has handed over the goods to the transportation company chosen by it.
16.2. The exclusive place of jurisdiction for all legal disputes arising between the Service Provider and the customer in connection with this contractual relationship is the court locally competent for the registered office of the Service Provider. Notwithstanding this, the Service Provider is entitled to sue the customer at its general place of jurisdiction.
16.3. Insofar as in this contract, designations related to natural persons are only mentioned in the masculine form, they refer to both women and men in the same way. When applying the designation to specific natural persons, the gender-specific form is to be used.
As of November 2020