FOR CLIENTS:
GENERAL TERMS AND CONDITIONS OF ZOOOM PRODUCTIONS GMBH
1. GENERAL PROVISIONS, SCOPE OF APPLICATION AND FORMATION OF CONTRACT
1.1. These General Terms and Conditions (hereinafter the "T&C") shall apply to all business relationships between ZOOOM Productions GmbH as contractor (hereinafter the "Agency") and its customers as principals (hereinafter the "Client"). The version applicable at the time the contract is concluded shall govern.
1.2. These T&C shall apply exclusively to entrepreneurs within the meaning of § 1 KSchG (Austrian Consumer Protection Act). If the Client is a consumer within the meaning of the KSchG, the mandatory consumer-protection provisions shall apply irrespective of the following provisions; in such a case, the Agency will apply separate terms and conditions complying with the KSchG.
1.3. Terms and conditions of the Client that deviate from, conflict with, or supplement these T&C shall not become part of the contract, even if the Agency is aware of them, unless the Agency expressly agrees to their validity in writing.
1.4. The Agency's offers are non-binding and subject to change.
1.5. Only orders or amendments to orders issued in writing shall be binding. A departure from this written-form requirement by conclusive conduct is excluded; any amendment to this written-form clause itself likewise requires written form.
1.6. The contract shall only come into existence upon written order confirmation by the Agency.
2. SCOPE AND PERFORMANCE OF THE ORDER; CLIENT'S DUTIES TO COOPERATE
2.1. The scope of services shall be conclusively determined by the Agency's order confirmation or by the description of services in any agency agreement that may exist. Within the framework specified by the Client, the Agency shall have creative discretion in performing the order.
2.2. All services of the Agency (in particular all preliminary drafts, sketches, finished artwork, proofs, blueprints, copies, colour prints and electronic files) must be reviewed by the Client and approved in writing, or returned with specific requests for changes, within three business days of receipt by the Client. When transmitting the relevant service, the Agency shall expressly and in a graphically prominent manner draw the Client's attention to this time limit and to the fact that the service shall be deemed approved if this time limit expires without a response. If this notice is not given, the deemed-approval fiction shall not apply.
2.3. The Client shall provide the Agency in good time and in full with all information and documents required for the performance of the services. It shall further inform the Agency of all circumstances relevant to the performance of the order, even if these only become known during performance. The Client shall bear the cost arising where work has to be repeated or is delayed by the Agency as a result of incorrect, incomplete, or subsequently amended information provided by the Client.
2.4. The Client shall further be obliged to check any documents made available for the performance of the order (photographs, logos, etc.) for any copyright, trademark or other third-party rights. The Agency shall not be liable for any infringement of such rights. The Client shall indemnify and hold harmless the Agency if the Agency is held liable due to any such infringement, and shall compensate the Agency for all disadvantages arising from any claim by a third party.
2.5. The Agency shall be entitled, at its own discretion, to perform the service itself, to engage qualified third parties as vicarious agents (Erfüllungsgehilfen) in providing services under the contract, and/or to substitute such services.
2.6. The engagement of third parties in the context of an outsourced service shall be made either in the Client's own name, but in any case for the Client's account. The Agency shall select such third parties carefully and ensure that they have the required professional qualifications.
2.7. Where necessary or agreed third-party services are commissioned by the Agency, the respective contractors engaged shall not be vicarious agents of the Agency.
3. CONFIDENTIALITY
3.1. The parties undertake to treat all confidential information of the other party obtained in connection with the business relationship – in particular business and trade secrets, campaign, strategy and financial data, and as-yet-unpublished creative concepts – as strictly confidential and to use it exclusively for the purposes of performing the contract.
3.2. This obligation shall continue for the duration of the business relationship and for three years following its termination. Excluded is information which is demonstrably already publicly known or which was lawfully obtained independently of this agreement.
3.3. This confidentiality obligation shall not affect the Agency's right to use references and its portfolio pursuant to clause 8.3.
4. DEADLINES AND DELIVERY PERIODS
4.1. The stated delivery or performance deadlines shall be approximate and non-binding only, unless expressly agreed as binding. Binding deadline agreements must be recorded in writing or confirmed in writing by the Agency.
4.2. If the Agency's delivery/performance 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 effort, the performance obligations shall be suspended for the duration and to the extent of the impediment. The deadlines shall be extended accordingly. Both the Client and the Agency shall be entitled to withdraw from the contract if such delays continue for more than two months.
4.3. If the Agency is in default, the Client may only withdraw from the contract if it has given the Agency a written grace period of at least 14 days and this period has expired without result. Claims for damages by the Client for non-performance or default shall be excluded unless intent or gross negligence is proven.
5. EARLY TERMINATION
5.1. The Agency may terminate the contract for good cause with immediate effect. Good cause shall exist in particular if a) performance becomes impossible for reasons attributable to the Client, or continues to be delayed despite the setting of a grace period of 14 days; b) the Client persistently breaches material obligations under this contract despite a written warning setting a grace period of 14 days; c) there are justified doubts as to the Client's creditworthiness and the Client, upon the Agency's request, provides neither advance payment nor adequate security prior to performance by the Agency; d) insolvency proceedings are opened over the Client's assets, or an application for the opening of such proceedings is dismissed for lack of assets to cover costs, or the Client ceases its payments.
5.2. The Client may terminate the contract for good cause without setting a grace period. Good cause shall exist in particular if the Agency persistently breaches material provisions of this contract despite a written warning setting a grace period of 14 days to remedy the breach.
5.3. In the event of early termination, any partial services already rendered by the Agency shall be invoiced at the agreed fee or, in the absence of agreement, at the market-standard fee. Any third-party services already commissioned by the Agency in the Client's name or for the Client's account (e.g. media, production, third-party suppliers) shall transfer to the Client upon termination; the Client shall indemnify and hold harmless the Agency in this respect.
6. FEE, PAYMENT AND RETENTION OF TITLE
6.1. Unless otherwise agreed, the Agency's entitlement to a fee shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses. The Agency shall further be entitled to issue interim statements or advance invoices, or to call in payments on account.
6.2. The fee shall be understood as a net fee plus value-added tax at the statutory rate. In the absence of agreement in an individual case, the Agency shall be entitled to a fee at the market-standard rate for services rendered and, where applicable, for the granting of copyright and trademark rights of use.
6.3. Services of the Agency not expressly covered by the agreed fee shall be remunerated separately. The Client shall reimburse the Agency for all disbursements incurred by the Agency.
6.4. Cost estimates issued by the Agency shall be non-binding. If it becomes apparent that the actual costs will exceed those estimated in writing by the Agency by more than 15%, the Agency shall notify the Client of the higher costs. If the Client does not object in writing within three business days of such notice, while simultaneously indicating more cost-effective alternatives, the cost overrun shall be deemed approved by the Client. A cost overrun of up to 15% shall be deemed approved by the Client from the outset.
6.5. The Agency shall be entitled to the agreed fee also for any of its work that is not carried into execution by the Client, for whatever reason. The set-off provision of § 1168 ABGB (Austrian Civil Code) shall be excluded. Upon payment of the fee, the Client shall not acquire any rights of use whatsoever in work already performed. Rather, any concepts, drafts and other documents not carried into execution shall be returned to the Agency without delay.
6.6. Unless special payment terms are agreed in writing in an individual case, the fee shall be due for payment immediately upon receipt of the invoice, without deduction. The same shall apply to the recharging of disbursements and other expenses. Goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all ancillary obligations.
6.7. In the event of default in payment by the Client, statutory default interest at the rate applicable to commercial transactions shall apply. The Client further undertakes, in the event of default in payment, to reimburse the Agency for reminder and collection costs incurred, to the extent that these are necessary for appropriate legal enforcement. This shall include at least the costs of two reminder letters at market-standard rates and one reminder letter from a law firm engaged to collect the debt. The Agency expressly reserves the right to assert further rights and claims.
6.8. In the event of default in payment by the Client, the Agency shall be entitled to declare immediately due and payable all services and partial services rendered under any other contracts concluded with the Client. In addition, the Agency shall not be obliged to render further services until the outstanding amount has been settled. If payment by instalments has been agreed, failure to pay any instalment or ancillary claim on time shall trigger acceleration; the entire outstanding debt shall then become immediately due and payable.
6.9. The Client shall not be entitled to set off its own claims against claims of the Agency, unless the Client's claims have been acknowledged in writing by the Agency or have been established by a court.
7. COPYRIGHT, RIGHTS OF USE AND USE OF ARTIFICIAL INTELLIGENCE
7.1. All copyrights shall remain with the Agency. The Agency reserves the right to determine whether, and if so with which designations, the works created within the scope of the services shall be marked.
7.2. The Agency shall have the exclusive right to grant licences to use the work (Werknutzungsbewilligungen) or rights of use (Werknutzungsrechte), which may be limited in time or territory. The grant of the relevant licence or right shall be subject to a separate agreement. If no separate agreement has been made regarding the scope of the licence or right, a licence to use the work of unlimited duration but limited territorially to Austria shall be deemed granted, applying exclusively to the works created within the scope of services. No automatic grant of licence or rights shall apply to products not covered by the scope of services.
7.3. The Agency shall exclude any right of the Client or third parties to edit or modify the work, unless the Agency has given its express consent. If a right to edit has been granted, the result must not be marked with the author's designation in a manner that gives the impression that the edited version is an original.
7.4. Where the Agency uses AI-based tools in the course of performing services (e.g. for generating images, text or video), it shall inform the Client thereof upon request. The Agency shall exercise the standard of care customary in the industry when selecting and using such tools; given the current state of the art, no warranty can be given that AI-generated content is free from third-party rights or free from labelling obligations under Regulation (EU) 2024/1689 (the EU Artificial Intelligence Act). Clause 2.4 shall apply mutatis mutandis to AI-generated content provided or commissioned by the Client. The substantive and legal review of approved content, including any labelling obligation under Art. 50 of the EU Artificial Intelligence Act, shall be the Client's responsibility as part of its review and approval obligations under clause 9.3. Where the Agency, on the Client's express instructions, publishes content on the Client's website or social media channels, it shall technically implement any labelling obligation communicated to it by the Client; the assessment of whether, and which, content is subject to a labelling obligation shall nevertheless remain the Client's responsibility. If the Client fails to make such assessment or to give the corresponding notice, it shall indemnify and hold harmless the Agency in respect of any resulting third-party claims or regulatory sanctions.
8. CREDIT AND USE OF REFERENCES
8.1. The Agency shall be entitled to credit itself, and where applicable the author, on all advertising materials and in connection with all advertising measures. The Client shall not be entitled to any remuneration for this.
8.2. The Agency shall be entitled, subject to the Client's right to revoke this in writing at any time, to refer to the business relationship with the Client on its own advertising media, in particular on its website, using the Client's name and company logo.
8.3. The Agency shall be entitled to refer to, and present to an appropriate extent, services rendered to the Client in the context of reference presentations, case studies, award submissions and pitch materials, provided that no legitimate confidentiality interests of the Client (clause 3) preclude this. The Client may restrict this entitlement in writing for individual projects expressly designated as confidential.
9. WARRANTY
9.1. Any defects must be notified by the Client in writing without delay, and in any event within seven days of delivery/performance by the Agency; hidden defects must be notified within seven days of their discovery (§ 377 UGB Austrian Commercial Code). Otherwise, the service shall be deemed approved, and in such case the assertion of warranty and damages claims, as well as the right to avoid the contract for mistake due to defects, shall be excluded.
9.2. In the event of a justified and timely notice of defect, the Client shall be entitled to have the delivery/service repaired or replaced by the Agency. The Agency shall remedy the defect within a reasonable period, and the Client shall enable all measures required for investigation and remedy of the defect. If remedy is impossible or would involve disproportionately high expense for the Agency, the Agency shall be entitled to refuse it; in that case, the Client shall have the statutory rights of rescission and price reduction. In the case of remedy, it shall be the Client's responsibility to arrange, at its own cost, for the defective (physical) item to be delivered to the Agency.
9.3. It shall be the Client's responsibility to review the legal admissibility of the service, in particular under competition, trademark, copyright and administrative law. The Agency shall not be liable for the accuracy of content where such content was specified or approved by the Client.
9.4. The warranty period shall be 12 months from delivery/performance. The right of recourse against the Agency pursuant to § 933b(1) ABGB (Austrian Civil Code) shall lapse 12 months after delivery/performance. The presumption rule of § 924 ABGB shall be excluded.
10. LIMITATION AND EXCLUSION OF LIABILITY
10.1. The Agency's liability for damage to property or pecuniary loss of the Client shall be excluded in cases of slight negligence. This shall apply irrespective of whether the claim relates to direct or indirect damage, loss of profit or consequential damage due to defects, damage due to default, impossibility, positive breach of contract, or fault at the time of conclusion of the contract, or due to defective or incomplete performance. The burden of proving gross negligence shall lie with the Client. Excluded from this limitation of liability in any event shall be damage arising from injury to life, body or health.
10.2. The Agency's liability for claims asserted against the Client arising from services rendered by the Agency shall be excluded in cases of slight negligence, provided that the Agency has complied with its duty to warn or that such a duty was not recognisable to it. Where the Agency is guilty of intent or gross negligence, its liability shall remain unaffected. In this respect, the Client shall indemnify and hold harmless the Agency to the extent permitted by statutory provisions.
10.3. Claims for damages by the Client shall lapse within six months of becoming aware of the damage. In any event, such claims shall become time-barred three years after the act giving rise to the infringement by the Agency.
11. DATA PROTECTION AND DATA PROCESSING
11.1. The Agency shall process personal data of the Client (in particular contact, contract and payment data) in accordance with the General Data Protection Regulation (GDPR) and the Austrian Data Protection Act, for the purposes of initiating, performing and administering the business relationship (Art. 6(1)(b) GDPR) and to comply with statutory obligations, in particular record-keeping obligations under commercial and tax law (Art. 6(1)(c) GDPR).
11.2. Invoicing- and accounting-relevant data shall be retained for seven years in accordance with statutory retention obligations (§ 132 BAO, Austrian Federal Fiscal Code; § 212 UGB, Austrian Commercial Code). Other data of the Client shall only be stored for as long as necessary for the performance of the contract, and in any event no longer than three years after termination of the business relationship. The Client, as data subject, shall have the rights to access, rectification, erasure, restriction of processing, data portability and objection pursuant to Art. 15–21 GDPR, and may at any time lodge a complaint with the Austrian Data Protection Authority (dsb.gv.at).
11.3. Where the Agency, in the course of performing the order, processes personal data of third parties (e.g. the Client's end customers) on behalf of the Client, the parties shall, prior to the commencement of such processing, enter into a separate data processing agreement pursuant to Art. 28 GDPR.
12. IT AND DATA SECURITY
12.1. Both parties shall implement appropriate technical and organisational measures to protect confidential campaign and business data against unauthorised access, loss or disclosure.
12.2. The Agency's use of cloud services and AI-based tools shall comply with applicable data protection and confidentiality requirements; the Agency shall not feed confidential content of the Client into publicly accessible AI training data sets, to the extent this is technically within its control.
13. SOCIAL MEDIA, LABELLING OBLIGATIONS AND REGULATED ADVERTISING CONTENT
13.1. In connection with social media and influencer collaborations, the Agency shall draw attention to the relevant labelling obligations for commercial communications (including § 26 UWG, Austrian Unfair Competition Act; the Austrian Media Act) and to the terms of use of the relevant platforms; the ultimate responsibility for the legally compliant labelling of published content shall lie with the Client as advertiser, to the extent the content was approved by the Client (see clause 9.3).
13.2. For clients from regulated industries (including health/cosmetics, food, and gambling), the Agency shall, to the best of its knowledge, draw attention to industry-specific advertising law requirements (e.g. the Austrian Medicinal Products Advertising Act (Heilmittelwerbegesetz); the EU Food Information to Consumers Regulation); the legal admissibility review of approved content shall be the Client's responsibility pursuant to clause 9.3.
14. FINAL PROVISIONS
14.1. The place of performance shall be the Agency's registered seat. As place of jurisdiction for all disputes arising directly or indirectly from the contract or these General Terms and Conditions, the Austrian court with local and subject-matter jurisdiction for the Agency's registered seat is agreed – subject to the Client's status as an entrepreneur pursuant to clause 1.2. Irrespective of this jurisdiction agreement, the Agency shall be entitled to assert its claims against the Client, at its own election, at any place and before any court having jurisdiction under statutory provisions – in particular the court of the Client's registered seat or domicile.
14.2. Austrian law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. Where the Client is a consumer habitually resident in another state, mandatory provisions of the law of that state shall remain unaffected (Art. 6 of Regulation (EC) No. 593/2008, the Rome I Regulation).
14.3. Should individual provisions of the contract or of these General Terms and Conditions be or become wholly or partly invalid, the validity of the remaining provisions shall not be affected. The wholly or partly invalid provision shall be deemed replaced by a provision that comes closest to its economic purpose.
FOR SUPPLIERS:
Downloadable Versions:
GENERAL TERMS & CONDITIONS FOR SUPPLIERS (VERSION July 2012)
1. GENERAL INFORMATION, AMBIT AND CONTRACT CONCLUSION
1.1. The following Terms and Conditions („TC“) govern all business relations between ZOOOM Productions GmbH („Agency“) and the contractor („Contractor“) arising from an already established contractual relationship between the Agency and its client or customer („Client“), irrespective of whether the Agency concludes the contract on its own behalf or under the name of the client, in any case however on account of the Client.
1.2. Aberrant, conflicting or amendatory terms and conditions will not become subject of the TC unless their validity is expressively approved by the Agency in writing.
1.3. Quotations by the Agency are subject to change and without any commitment on the part of the Agency.
1.4. Orders or modifications thereof are binding only if submitted in writing.
1.5. The contract will come about only after written confirmation by the Agency.
2. SIZE AND TRANSACTION OF ORDER
2.1. The quantitative scope of services results from the Agency's notice of award, which is binding. Optional surplus quantities shall not be remunerated – even though they may have been essential for the production. The scope of services also comprises designs and quotations, in particular those for alternative solutions.
3. DEADLINES AND DELIVERY TERMS
3.1. Deadlines and delivery terms agreed upon in writing between the Agency and the Contractor are binding.
3.2. Should the Contractor be behind schedule the Agency may withdraw from the contract after the expiration of a grace period of 14 days and demand compensation for failure of performance or default.
3.3. If the Contractor delivers ahead of schedule the Agency is not obliged to accept the service on the one hand and on the other hand the due date for payment claims agreed upon shall not be altered.
3.4. The Contractor is obliged to immediately inform the Agency in writing of an apprehended delay in delivery. If it is foreseeable that delivery/performance cannot be provided on schedule and consequently a considerable interference with production is to be expected with the Agency and/or its Client the Agency is entitled to withdraw from the contract.
3.5. Delivery takes place at the Contractor's risk and expense and to the delivery address specified by the Agency.
4. ACCEPTANCE, NOTICE OF DEFECTS, WARRANTY AND SUBSEQUENT IMPROVEMENT
4.1. The acceptance of the delivery/performance is effected only when the Agency has expressly acknowledged it as being as stipulated in the contract.
4.2. The acceptance of the contractual object and payment before deficiency statement do not constitute recognizance of a faultless delivery and performance, or a waiver of the right of reprimand. This goes as well for the delivery receipt of inward goods by the Agency or the Client.
4.3. The Contractor expressly waives his right stipulated in § 377 of the Austrian Business Code which for want of a notice of defects forecloses the enforceability of a warranty claim, compensation of damages for the deficiency itself and due to an error regarding the faultlessness of an item.
4.4. Regarding the deliveries of the design or production of promotional material the assigned tasks must have been solved and comply with the latest state of technology and, where applicable, conform with the provided drafts and instructions. Provided the Contractor has submitted work samples prior to the contract award, the deliveries must be on a level with the technical, promotional and artistic standard of these samples.
4.5. In the case of a notice of defects the Agency is entitled to improvement or replacement of the delivery/performance by the Contractor. The Contractor is obliged to immediately redeem the rejected delivery and performance. In case of negligent refusal of acceptance of the return the Agency stores the items until pickup, however no longer than three months at Contractor's risk and expense. After expiry of this period and written General Terms and Conditions for Subcontractors notice given to the Contractor the Agency is entitled to destroy the items at the Contractor's risk and expense after a grace period of 14 days.
5. FEES, INVOICE AND PAYMENT
5.1. The costs agreed upon are quoted net plus statutory sales tax and are binding.
5.2. The Contractor shall be paid separately for additional expenditure that may arise due to amendment and complement requests by the Client after contract award only when he submits a notice regarding the claim for payment to the Client immediately and in writing.
5.3. Eventual packaging costs shall not be refunded.
5.4. The invoice must be forwarded to the Agency immediately after delivery/performance. Unless particular payment terms have been stipulated in individual cases payment of the invoice amount shall take place within 14 days after receipt less 2% discount or within 30 days after receipt due net.
6. SPECIAL PROVISIONS FOR PHOTOGRAPHERS AND STYLISTS
6.1. In the name of the Client the Agency is entitled to specify persons participating in the design of a photo motif (such as models, makeup artists, stylists and their costumes), props, specific technical effects (such as particular lighting) as well as the location. This is essential in regard to an optimal implementation of the campaign concept endorsed by the Client. The Contractor has to close the required employment, purchase and lease contracts by order and on account of the Client. The Contractor has to close the contracts mentioned above in line with the quotations approved by the Client and in line with the special provisions valid for photographers and stylists.
7. INSURANCE
7.1. The Contractor undertakes to procure adequate insurance for potential damages of all kind in conjunction with the fulfillment of the assignment. In particular cases the Agency may request proof of insurance.
7.2. The Contractor carries the cost for the insurance. The costs are on account of the Agency only when the Agency commissions the Contractor in writing to procure the insurance is by.
8. PROPRIETARY RIGHT OF UTILIZATION/ANCILLARY COPYRIGHT
8.1. After payment the proprietary right of utilization and ancillary copyrights of the Contractor as well as the right to use the image of the model – regarding the contract subject respectively – are transferred to the Client without temporal or regional limitations for his exclusive utilization. Purpose of usage: promotional and non-promotional, primary and multiple utilization; type of use: All conceivable as well as new future types of use, all conceivable as well as new future reproduction techniques; further authorizations: utilization of parts of the contract subject as well (also utilization of clippings, photo-composing, film-composing), modification right, complete or partial transfer of the exclusive right of utilization to a third party.
8.2. In his quotation the Contractor must inform the Client whether and which of, as the case may be, the utilization rights to be transferred to him according to section 8.1. he has transferred to collecting societies.
8.3. Insofar utilization rights have not been transferred notwithstanding section 8.1. the Client may subsequently claim their transfer wholly or partially in exchange for an adequate compensation. Insofar as possible the compensation conforms with what has already been agreed with the Contractor or otherwise with the fees of the collecting societies; as long as the latter do not interfere the compensation shall be assessed by the Client based on fair judgment, verifiable by law.
8.4. Should the Contractor appoint collaborators and/or subcontractors and/or models in fulfillment of the contract he is obliged to acquire their utilization rights and transfer them to the Client to the extent as stipulated in section 8.1. for the Contractor's own performances. In addition, he has to entail the same obligations on these persons for their performance contribution in favor of the Client as he must assume for his performance himself.
8.5. The Contractor guarantees that third party rights on his contractual performance that may interfere with the transfer of rights and/or the stipulated utilization of his performance (e.g., personal rights of pictured persons) do not exist.
8.6. The Contractor has to provide the utilization rights that are to be transferred by him comprehensively according to section 8.1., as well as restricted to the type of advertising media to be commissioned for the contract subject, but in other respect according to section 8.1. Any further restrictions are to be explained in an additional alternative quotation. The working fee is to be disclosed separately, it is included in the remuneration agreed upon.
8.7. The Contractor is obliged to have collaborators and/or subcontractors and/or models sign a declaration on the transfer of utilization rights and to submit it to the Agency.
8.8. The Agency shall be entitled but not obligated whatsoever to name the Contractor or any authors, inventors or designers in connection with the utilization of the services/works. The Contractor shall also apply this to any involved third parties.
8.9. In addition, the Agency has the right to register provided services/works as a trademark, registered design, copyright, utility model, patent or other intellectual property right. The Contractor waives its right to be mentioned in connection with the registration.
9. ACQUISITION OF OWNERSHIP, CUSTODY, ASSURANCE AND LIEN
9.1. With payment of the royalties for illustrations as well as the reproduction material manufactured or procured by the Contractor for the fulfillment of the contract (such as printing material like typesetting, photographs, stamping die molds, lithography, films, tools, electronic files etc. including drafts not delivered and archival backup copies) the Client gains ownership or unrestricted utilization rights. From this moment on the Contractor carefully stores these items for the Client for up to a maximum of 24 months. At the end of this period and after a written notice to the Client with a deadline of at least six weeks the Contractor is entitled to destroy the items at his own expense.
9.2. The Contractor has to store an archival backup copy of every electronic file on a separate storage medium at his own expense and to store it apart from the primary storage medium.
9.3. Regarding the items that the Contractor receives from the Agency or the Client the Contractor does not gain ownership nor any exploitation rights. He may use these items only for the transaction of the contract. The Contractor must store them carefully and return them immediately upon demand.
9.4. The Contractor does not retain a possessory lien on the items to be returned.
10. CONFIDENTIALITY
10.1. The Contractor has to treat all information and documentation to which he gains access in the course of contract development as well as the commissioned promotional media and items according to section 9. as strictly confidential. The duty to observe secrecy remains effective even after completion of the contract and even then if the contract does not come to conclusion.
10.2. The Agency remains the owner of all provided documents and fully retains all intellectual property rights. Upon the Agency’s request, the Contractor shall return or destroy all provided documents.
10.3. The Contractor may use copies of the contractual performance for his own advertising only with prior written approval by the Agency.
10.4. The Contractor commits to impose a confidentiality agreement in writing on his collaborators, subcontractors, models, etc. involved with the implementation of the contract, insofar this is essential for safeguarding confidentiality.
10.5. Furthermore, the Contractor shall disclose any received information only to those employees who need the information to work on the project.
10.6. The Contractor is only permitted to use any produced materials as a work reference after prior approval by the Agency.
10.7. The Contractor shall ensure that all provided information is properly protected against theft, damage, loss or unauthorized access.
10.8. A breach of confidentiality may entail a contract penalty of € 6,000.00 for each single offence. This contractual penalty shall not depend on any actual damage suffered, it shall be due for each instance of infringement, regardless of negligence, and shall not be subject to an equitable review by the courts. Payment of the contractual penalty shall not affect the Agency’s right to claim damages exceeding the amount of the contractual penalty.
11. TRANSFERABILITY OF RIGHTS, RETENTION
11.1. A relinquishment of the Contractor's rights from the contract, particularly the claim for remuneration is possible only with prior sanction of the Agency.
11.2. The Contractor is not entitled to charge his own receivables against the Agency's receivables unless the Contractor's receivables have been acknowledged by the Agency or were determined by a court decision.
11.3. A retaining lien for the Contractor is not applicable.
12. LIABILITY
12.1. The contract must be conducted through the Agency in any case, even when the Agency has commissioned it on behalf of a third party. Any liability of the Agency for the Client's contract fulfillment or for his credit rating that was not verified by the Agency is excluded in this case.
13. COMMITMENT TO STANDARDS
13.1. The Agency is committed to the FTA’s Business Social Compliance Initiative (BSCI) for improving social standards in the global supply chain of commerce and expects the Contractor and all of its subcontractors to respect the standards outlined in this initiative as well.
14. FINAL CLAUSE
14.1. Place of fulfillment is the registered office of the Agency. For the legal venue for all disputes arising directly or indirectly from the contract or these general terms and conditions the Austrian court of law competent for the seat of the registered office of the Agency will be stipulated. Regardless of this agreement conferring jurisdiction the Agency is entitled to lodge a claim against a Customer at any place and before any court of law that has jurisdiction according to statutory provisions – in particular the court of the Customer's domicile.
14.2. The laws of the Republic of Austria shall govern the contract the rights and the obligations of the parties hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is foreclosed.
14.3. The effectiveness of other provisions is not affected should individual provisions of the contract or of these general terms and conditions be or become wholly or partially ineffective. The wholly or partially ineffective provision shall be regarded as being replaced by such provision that comes as close as possible to the economic intent.
Last Upate: July 2012