General Terms and Conditions
General Terms and Conditions
1.1. For all legal relationships between alpha3D.media (company Creative Graphics Mediendesign e.U.), Allhaming 102, 4511 Allhaming and their contractual partners, insofar as these are entrepreneurs, these General Terms and Conditions of Business shall apply exclusively. These shall also apply to all future business relations, even if no express reference is made to them.
1.2. Subsidiary agreements, reservations, amendments or supplements to these General Terms and Conditions of Business must be in writing in order to be valid; this also applies to any deviation from the written form requirement.
1.3. Any terms and conditions of the contracting party that conflict with or deviate from these Terms and Conditions shall only become effective, even if known, if they are expressly accepted by us in writing.
1.4. Should individual provisions of these General Terms and Conditions – for whatever reason – be invalid or not become part of the contract, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision which comes as close as possible to the meaning and purpose of the invalid provision.
2. Conclusion of contract
2.1. Our offers are subject to change.
2.2. A contract shall only be concluded upon written (fax, post, email/PDF) order confirmation on our part.
3. Scope of services, stipulated characteristics, order processing and cooperation obligations of the client
3.1. If we send templates (in particular animated films as well as their excerpts, samples, models, illustrations, preliminary drafts, sketches, final artwork, concepts, brush prints, blueprints and colour prints), these must be checked by the client. If the customer does not raise any objection within three days, the templates shall be deemed to have been approved.
3.2. For technical reasons, it is not possible to provide a faithful representation of the final services as a template. Templates shall therefore only be deemed to be warranties in accordance with this point regarding the design, quality, properties, suitability for a specific use, etc. of the performance owed by us; we therefore make no warranties of any kind with regard to or, in particular, do not provide any warranty for
a) the exact placement and size of inscriptions on products;
b) an exact colour match between templates and finished services, in particular a colour difference of up to ΔE 3.0, ΔE 4.5 if the templates were only approved in electronic form, shall not be deemed a defect;
c) the technical properties, insofar as a use to be expected on average according to the nature of the performance is not significantly impaired by deviations;
d) a specific material or material quality, insofar as the final product is approximately comparable to the original. If the final performance therefore deviates from the original with regard to one or more of these properties, this deviation shall be deemed to be agreed and shall not constitute a defect.
3.3. In the case of deliveries, deviations of up to +/-10% of the number of items shall be deemed to be agreed without excess or short deliveries constituting a defect or a breach of contract. However, the purchase price shall depend on the actual number of units delivered.
3.4. The customer shall be obliged to cooperate to the extent necessary, in particular to provide all documents, templates and samples required for the performance of the service. We must be informed immediately of all circumstances of importance for the performance of the order, even if these circumstances only become known during the execution of the order. Any expenses incurred as a result of incorrect, incomplete or subsequently changed information (additional costs, delays, contractual penalties, other consequential and additional costs, …) shall be reimbursed by the customer.
3.5. The customer shall in particular be obliged to check the documents made available for the execution of the order (templates, typesets, photos, logos, typographical rights, in particular rights to fonts, etc) for any existing copyrights, trademark rights or other rights of third parties. We shall not be liable for any infringement of such rights. Should a claim be made against us due to such an infringement of rights, the customer must guarantee that all costs (including consequential costs) are fully indemnified and held harmless.
3.6. We are not obliged to check the documents, data and information provided by customers for completeness, correctness and whether these are suitable for the intended purpose alone or in connection with services commissioned by the customer, or whether they infringe the rights of third parties or violate statutory provisions (e.g. the Unfair Competition Act).
3.7. Unless otherwise agreed, we are not obliged to store data and other documents (screens, films, renderings, etc.) created or generated in the course of an order/project beyond the time of handover of our service or to otherwise keep them available for the customer.
3.8. In case of doubt, our services are divisible.
4. Refinement of the customer’s things
4.1. If goods are handed over to us for processing (“finishing”), we shall be entitled to carry out this processing ourselves or to use third parties.
4.2. We shall be liable to the customer for damage caused by such third parties exclusively to the extent of our own claims for compensation against the third parties.
4.3. Dispatch to and from such third parties shall generally be effected uninsured either by post, forwarding agent, rail or courier service, which the parties agree to be the customary mode of dispatch. If the customer does not make any special stipulations regarding the transport company, the type of dispatch or the conclusion of transport insurance, the transport by one of these types of dispatch shall be deemed to have been approved by the customer and shall in any case be carried out for the account and at the risk of the customer.
4.4. For the storage of the customer’s goods, § 44 to § 49 of the General Austrian Forwarders’ Terms and Conditions (AÖSp) shall apply, but our liability for damages shall also be limited for storage to intent and gross negligence. Pursuant to § 50 of the AÖSp, we acquire a right of lien and retention on all assets stored by the customer or other assets of the customer which are in our power of disposal.
4.5 We are only liable for damage to valuables handed over by the customer, i.e. items with a value of more than € 250.00, if the customer has expressly informed us of their value and we are at fault for the damage in the sense of intent or gross negligence. If we have not been informed of the value of these items, we shall not be liable.
5. Prices / Quotations / Cost estimate
5.1. The prices are based on the costs at the time of the initial price quotation. Should the costs increase at the time of delivery or performance, we shall be entitled to adjust the prices accordingly. In case of doubt, the prices offered shall be deemed to be unit prices. Statutory VAT and other taxes and fees (e.g. ARA, ERA, URA, …) shall be charged additionally.
5.2. Our cost estimates are generally non-binding, unless binding force is expressly promised.
5.3. All services not expressly covered by the agreed fee shall be invoiced separately. Expenses/cash outlays (e.g. for travel, accommodation, model or sample production, …) shall be remunerated separately. Unless otherwise agreed, the preparation of templates is also not included in the price and shall be charged at € 96.00 net per working hour (excluding material costs).
5.4. The remuneration by the customer shall also be due in full if the fulfilment of the contract fails for reasons beyond our control.
5.5 Insofar as we are subject to the obligations of a contractor, the crediting provision of § 1168 para. 1 2nd half-sentence ABGB (Austrian Civil Code) as well as the risk transfer provision of § 1168a 1st sentence ABGB (Austrian Civil Code) shall be waived. 5.6 If fees, taxes, customs duties or other charges are levied in connection with the delivery, these shall be borne by the customer unless otherwise agreed, as shall transport and delivery costs.5.7 If our order consists of a creative service (e.g. production of an animated film), we guarantee the greatest possible care. Should our performance nevertheless deviate from the client’s expectations, e.g. because the client expected a different result of an animated film, the full fee shall nevertheless be due. A reduction of the remuneration is excluded.
6. Dates / Delay
6.1. Agreements on deadlines and dates must be recorded or confirmed in writing (fax, post, pdf). Deadlines apply in principle to the dispatch (see point 7.4.) of services, not to their delivery to the customer.
6.2. Unless otherwise agreed, dispatch by us or third parties in Austria or abroad whom we use to fulfil the contract shall take place within 6 months of order confirmation, but insofar as a printing release or approval by the customer is required, from the time it is issued.
6.3. The customer may only assert any claims due to delayed delivery after setting a grace period of at least 14 days in writing, which begins at the earliest with the receipt of a reminder letter sent to us.
6.4. After the fruitless expiry of the grace period, the customer may withdraw from the contract. An obligation to pay damages on the grounds of default shall only exist in the event of intent or gross negligence on our part. We shall not be liable to pay interest on arrears.
6.5. Obstacles to production and delivery for which we are not responsible (also with regard to third parties in Germany or abroad whom we use to fulfil the contract), such as force majeure, strikes, operational or delivery disruptions, shortening and loss of working hours, transport difficulties and official interventions, shall result in a reasonable extension of the dispatch periods and dates. The same applies if the customer is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information) or if other circumstances within the customer’s sphere of influence prevent the observance of deadlines. In this case, the agreed date shall be postponed at least to the extent of the delay, without prejudice to any right of withdrawal on our part pursuant to item 10.
7. Delivery / Transport / Collection
7.1. If the customer does not collect services himself during our business hours, deliveries shall be made from the registered office in Allhaming or from a third party in Austria or abroad whom we use to perform our services, in any case at the risk and – unless otherwise agreed – at the expense and risk of the customer (sale by dispatch). The risk shall also pass to the customer if we provide further services (e.g. assembly).
7.2. If shipment has been agreed at our expense, we shall bear only those costs of transport which are incurred in accordance with § 33 of the AÖSp up to the point in time at which the carrier makes the goods available for acceptance in or on the means of transport (e.g. truck, swap body, …) to the recipient in front of or, if possible, on the recipient’s property. The removal of goods into yards, onto ramps, into rooms, shelves and the like shall in any case be at the expense of the customer.
7.3. As a rule, dispatch shall be effected either by post, forwarding agent, rail or courier service, which the parties agree to be the customary modes of dispatch. If the customer does not make any special stipulations with regard to the transport company or the type of dispatch, transport by one of these modes of dispatch shall be deemed to have been approved by the customer.
7.4. Unless expressly agreed otherwise, all deadlines and dates shall apply exclusively until the dispatch of services ex works (i.e. handover to the carrier) and we shall not have to provide our services as fixed-date transactions.
7.5. There shall be no obligation on our part to provide the cheapest shipment.
7.6. Partial deliveries on our part shall be permissible.
7.7. Insofar as the customer does not expressly request in the order or otherwise in writing within 3 days of order confirmation that transport insurance be taken out for his account, the shipment shall be uninsured at the risk and peril of the customer, including any consequential or additional costs.
7.8. If the service is ready for dispatch, but dispatch is delayed for reasons beyond our control, the risk shall pass to the customer as soon as the service is ready for dispatch and we shall be entitled to charge the customer 1% of the invoice amount for each week or part thereof of the delay or the costs exceeding this (interest, storage costs, …). If self-collection has been agreed, this shall also apply if the customer does not collect the service within three days of receipt of a request for collection or notification of readiness for collection.
7.9. If our service lies in the creation of a data material (e.g. creation of animated films), the customer expressly agrees to the transmission by electronic means via e-mail, but also via common data transfer platforms (e.g. Adobe Creative Cloud, WeTransfer, etc.) and accepts their conditions.
8. Terms of payment
8.1. Our invoices are due net cash without any deduction from the date of the invoice and are payable immediately upon receipt of the invoice, unless otherwise agreed.
8.2. Invoicing shall be based on the number of units actually delivered. However, the payment shall also be due in full (namely in the amount of the agreed – at most average – number of items) if the fulfilment of the contract is omitted in full or in part for reasons that are not within our sphere of influence.
8.3. We shall be entitled at our own discretion to make partial settlements and to demand advances on costs, this also in the case of agreed payment dates.
8.4. Payments can only be made with debt-discharging effect to our account stated in the invoice. Incoming payments shall first be credited to costs, then to interest and finally to the principal.
8.5. Bills of exchange and cheques shall only be accepted on the basis of an express agreement, without any obligation to present and protest them and only on account of payment.
8.6. In the event of even mere objective default in payment, the customer shall pay default interest in the amount of 8% above the respective base rate of the European Central Bank, but at least 1% per month. Any discounts, rebates or other benefits granted shall be deemed not to have been granted in the event of default in payment or in the event of the opening of insolvency proceedings against the customer. In the event of even mere objective default, the customer undertakes to bear all costs and expenses associated with the collection of the claim, such as, in particular, collection expenses or other costs necessary for appropriate legal prosecution.
8.7. The customer is not entitled to set off his own claims against our claims if these have not been recognised by us in writing or established by a court of law. The customer shall have no right of retention.
8.8. If insolvency proceedings are instituted against the customer, if bankruptcy proceedings are not instituted against the customer’s assets due to a lack of assets to cover costs, if execution proceedings are instituted against the customer, if there is a deterioration in the customer’s financial circumstances, if credit information about the customer is not completely unobjectionable or if the customer is in default of payment, we shall be entitled to declare all services and partial services provided, including those under other contracts concluded with the customer, immediately due and payable. Furthermore, in each of these cases we shall be entitled to make further deliveries already confirmed by the customer dependent on advance payment or security, even if such payment or security has not been agreed.
9. Retention of title
9.1. We reserve the right of ownership to all delivered physical objects and all performed services/projects including contents/templates/samples/concepts and all associated rights until payment has been made in full.
9.2. We are entitled to withdraw from the contract and to collect the reserved goods after prior notice if the customer is in default with the fulfilment of his obligations, even if only objectively, or if circumstances arise that endanger our claims.
9.3. In the event of the resale of the reserved goods, it is agreed that the customer’s purchase price claim against third parties is thereby simultaneously assigned to us as security for our contractual claims against the customer.
10. Withdrawal from the contract / Cancellation
10.1. In particular, we are entitled to declare withdrawal from the contract if
(i) the customer breaches a contractual obligation that is not merely immaterial and does not remedy this breach despite a reminder and the setting of a reasonable grace period, whereby the repeated breach of even merely immaterial contractual obligations shall be deemed a material breach of contract,
(ii) the service cannot be provided for reasons for which we are not responsible,
(iii) the financial circumstances of the customer deteriorate considerably,
(iv) insolvency proceedings are instituted against the customer or are not instituted for lack of assets to cover costs or
(v) an event of force majeure occurs which prevents us from providing the service.
10.2. The customer is entitled to declare withdrawal from the contract if we grossly breach a material obligation. However, insofar as the contractual condition can be restored on our part or an action can be made good, the customer shall grant a period of at least 14 days for this purpose. This period shall commence at the earliest upon receipt of a reminder letter in which the customer specifies the breach of contract and expressly threatens to withdraw from the contract.
10.3. In the event of unjustified withdrawal from the contract or cancellation of services, the customer shall reimburse us for all expenses already incurred and the costs caused thereby of at least 9% of the agreed remuneration, but at least € 50.00 plus VAT. However, at our discretion, we are also entitled to demand the agreed remuneration instead in accordance with Section 1168 (1) 1st half-sentence of the Austrian Civil Code (ABGB).
11. Property rights / data protection/h3>
11.1. Unless otherwise agreed in writing, we shall grant the customer a non-exclusive right of use (permission to use the work) for the duration of the contractual relationship in respect of all services, work results and creations in connection with the respective order, in particular in respect of works within the meaning of the Copyright Act, such as in particular in respect of all texts, graphics, images, layouts, ideas, concepts, plans, sketches, advertising material, films, drafts, designs, trademarks, etc. This right of use shall depend in each case on the purpose of the individual order or measure. The factual and spatial scope of this right of use shall be determined in each case by the purpose of the individual order or the individual measure.
11.2. If we use the services of third parties, we shall ensure that appropriate agreements are concluded with those third parties so that it is ensured that we receive the rights of use to these services within the meaning of this contractual point.
11.3. Changes to services, work results and creations, in particular to works within the meaning of the Copyright Act, are only permitted with our consent or that of the author. We do not assume any liability for any consequential costs resulting from the infringement of these rights.
11.4. The acquisition of any rights of use and exploitation by the client shall only take place after full payment of all invoices due. Until this time, the customer shall only be entitled to use at any time upon revocation. In the event of default in payment, we shall be entitled to demand the discontinuation of any use of services rendered.
11.5. The client shall grant us a right of use and processing of all data collected and/or transmitted in the course of the business relationship, such as in particular for the creation of benchmarks. Reference is made to point 3.5.
11.6. Subject to the written revocation of the customer, which is possible at any time, we are entitled to refer to the existing business relationship with the customer as a reference on our own advertising media and in particular on our Internet website with the name and company logo.
12. Templates and samples / Confidentiality / Contractual penalty
12.1. If we do not receive an order after the creation of templates/samples/concepts or if the client or we withdraw from the contract, all our services, in particular the templates/samples/concepts, their content and all associated rights shall remain our property; the client shall not be entitled to use them further – in whatever form; the templates/samples/concepts shall rather be returned immediately. The transfer of templates/samples/concepts to third parties as well as their publication, duplication, dissemination or other exploitation is not permitted without our express consent.
12.2. The client is also prohibited from further use of the ideas and concepts introduced in templates, irrespective of whether the ideas and concepts obtain copyright protection.
12.3. If the client breaches the obligations under this clause 12, he shall be obliged to pay a contractual penalty of € 3,000.00, but at least 10% of the order amount, irrespective of fault. Such a breach of contract shall be deemed proven if we present performances, works or other creations of third parties or of the client in which these ideas, concepts or templates were used or credibly prove their existence; in such a case, the client shall prove that he did not breach the contract. We reserve the right to assert claims for damages exceeding the contractual penalty.
13. Labelling / Advertising / Exclusivity
13.1. We are entitled to refer to our company and, if applicable, to the originator on all advertising materials and in all advertising measures, without the customer being entitled to any remuneration for this.
13.2. We are entitled to use pictures, sketches, descriptions, models, inscriptions and other details of the services provided to customers for advertising purposes. This includes, for example, the use of illustrations in his advertising documents, offers, etc. for our advertising and business purposes.
13.3. Unless expressly agreed otherwise, customers shall only receive a non-exclusive right of use to property rights which are related to our services and shall therefore in particular have no claim to exclusive purchase and use of our services.
14. Warranty / duty to inspect / rescission
14.1. Irrespective of the information which the customer provides to us in accordance with point 3.4, we do not provide any warranty for a particular quality, usability or usability of our services.
14.2. point 3.2 applies to the conditional or usually assumed properties of the services, in particular on the basis of templates within the meaning of point 3.1.
14.3. the warranty due to a lack of suitability of the trader’s services for a particular use is expressly excluded.
14.4. In the event of any other loss of any claims arising from a defect (warranty, contestation of error, compensation for damages,…), the Customer shall be obliged to inspect the Merchant’s performance immediately and thoroughly and to notify the Merchant in writing of any defects without delay, at the latest, however, within 3 working days of handover, stating the exact nature of the defects and enclosing suitable proof of the defectiveness.
14.5. The avoidance of contracts due to shortening by more than half is expressly excluded.
14.6. The reversal of the burden of proof according to § 924 ABGB at our expense is excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect shall be proven by the customer.
14.7 The warranty period shall be 6 months and shall commence from the date of acceptance of the performance by the customer (self-collection or acceptance from the carrier) or from the date of default of acceptance by the customer. The warranty period ends prematurely if the customer or third parties make changes to the services or use them improperly, store them or otherwise do not handle them in accordance with the terms of the contract.
14.8 The customer is not entitled to withhold payments due to insignificant defects or to withhold payments attributable to one part of the goods because another part of the goods has significant defects.
14.9. Any warranty claims shall be suspended as long as the customer is in default of payment; this suspension shall not, however, prevent the commencement, running and expiry of the warranty period.
14.10. In the event of justified and timely complaints, the customer shall only be entitled to the right to improvement or replacement of the performance at our discretion.
14.11. In the event of a justified complaint, the defects notified shall be remedied within a reasonable period, which shall be at least 14 days. At our discretion, improvement shall take place either in our factory or at the customer’s premises. If the defect is remedied by improvement in our works or by replacement, the defective services shall be properly packaged and shipped at the customer’s risk but at our expense.
14.12. Improvement or replacement shall neither extend nor renew the warranty period.
14.13. We shall be entitled to refuse improvement or replacement of the service if this is impossible or involves a disproportionately high effort for us. In this case, the customer may claim a price reduction.
14.14. The customer is obliged to support us in the determination and rectification of defects and to enable all necessary measures (such as access, inspection of documents, etc.). If the customer does not comply with his duty to cooperate in the rectification of defects, the assertion of any claims resulting from a defective performance shall be excluded.
14.15. If, in the course of the inspection of the notified defects, it turns out that these are not present or are not covered by our warranty obligation, we shall be entitled to return the services to the customer at the latter’s risk and expense and to invoice the customer in full for the costs incurred as a result of the unjustified complaint.
15. Damage compensation
15.1. We shall fulfil the duties assigned to us in compliance with the generally recognised principles of law and shall inform the customer in good time of any risks which are recognisable to us. However, we do not have any knowledge regarding a particular type of use of our services by the customer, which is why we are under no obligation to examine or inform the customer regarding the suitability or safety of its services for certain types of use.
15.2. Any liability for claims made against the client on the basis of the advertising material, the use of a trademark or any other service provided by us is expressly excluded if we have fulfilled our duty to inform or if we could not and should not have recognised such risks.
15.3. In general, we shall only be liable for damages within the framework of the statutory provisions if we can be proven to have acted with intent or gross negligence. Liability for negligence is excluded. The existence of gross negligence or intent must be proven by the injured party; the reversal of the burden of proof pursuant to § 1298 ABGB (Austrian Civil Code) is expressly excluded.
15.4. Compensation for consequential harm caused by a defect, mere financial loss as well as loss of profit and damage to third parties is excluded in all cases; damages are to be calculated exclusively on an objective-abstract basis.
15.5. Claims for compensation for damages must be asserted in court within six months of knowledge of the damage and the damaging party, at the latest, however, within one year of acceptance, in the event of any other exclusion. If the customer is in default with the takeover, the period shall commence with the conditional handover; if no such handover has been agreed, the period shall commence from the time at which we are ready to perform for the first time. Any liability for damages asserted or first arising after the expiry of this period shall be excluded.
15.6. Claims for damages shall be limited to the amount of the remuneration agreed for the specific service, excluding taxes, and, if covered by a liability insurance policy, to the corresponding sum insured.
15.7. If claims are asserted against us by third parties due to the use of our services by the customer (e.g. passing on), the customer shall indemnify and hold us harmless.
16.1. The customer agrees to the transmission of data and information by email until revoked in writing. We transmit data in standardised formats (*.doc, *.docx, *.xls, *.xlsx, *.pdf, *jpg, *.ai, *.eps, *.png, *.gif, *.raw, *.txt) to the customer.
17. Applicable law
17.1. The legal relationship between us and our customers shall be governed exclusively by Austrian law to the exclusion of the conflict-of-law rules. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
18. Place of performance and jurisdiction
18.1. The place of performance shall be our registered office.
18.2. The place of jurisdiction for all disputes arising directly between us and our customers shall be the court with local and subject-matter jurisdiction for Allhaming.
The protection of your personal data is important to us. We process your data exclusively within the framework of the legal provisions (DSGVO, DSG 2000, TKG 2003). In the following, we inform you about the most important aspects of data processing within the scope of our business relationship.
Collection and processing of data
We process the data that you provide to us as an interested party, customer or supplier in order to carry out pre-contractual measures (contract initiation) and upon conclusion of the contract. Only the data necessary for initiating the contract, processing the order and fulfilling the contract are stored.
The data processing is carried out by us.
Data processing is carried out for the following purposes
Within the framework of our business relationship, computer support (e.g. programmes for order processing, e-mail dispatch, contact and task management, as well as graphics, layout and 3D programmes) and in the form of archived documents (e.g. correspondences, contracts, concepts, templates, samples, manual files, personalised offers and invoices) are used to process the data you have provided in order to carry out pre-contractual measures and to fulfil the contract.
Legal basis of data processing
Data processing is based on Art. 6 (1) lit. b of the DSGVO (contract initiation and fulfilment). In order to process your order to your complete satisfaction, we need your data.
In addition, data processing is based on Art. 6 para. 1 lit f of the DSGVO (legitimate interest in marketing and advertising) and Art. 6 para. 1 lit a (consent). We would like to provide you, as an interested party, with up-to-date and targeted information about our services and projects.
Use and disclosure of data
We only use your data to process the contract, to answer your enquiries, for accounting and billing purposes and for technical administration.
We only pass on your personal data if this is necessary for the purpose of processing the contract or for billing purposes, or if you have given your consent to this.
Your data will be deleted if it is no longer required to fulfil the purpose for which it was stored and the legal retention periods have expired, or if storage becomes inadmissible for legal reasons. Data for billing and accounting purposes are not affected by a deletion request.
You are generally entitled to the rights of information, correction, deletion, restriction, data portability, revocation and objection, insofar as this does not conflict with any legal obligation to retain data. If you believe that the processing of your data violates data protection law or your data protection rights have been violated in any other way, please inform us or contact the competent supervisory authority. In Austria, this is the data protection authority.
Translated with www.DeepL.com