General Terms & Conditions
I. Scope of application
- The present GTC apply to all legal transactions between Putz & Stingl Event, Public Relations and Werbung GmbH – hereinafter referred to as P&S – and their customers – hereinafter referred to as the client.
- Changes and additions as well as ancillary agreements regarding the present general terms and conditions and the legal transactions are only legally effective if they are made / agreed in writing and at least one managing director of P&S has agreed to them. This also applies to a changes from this provision.
- If the client is to be qualified as a consumer within the meaning of the KSchG, the mandatory provisions of the KSchG also apply. Accordingly, if individual provisions within the meaning of the KSchG are ineffective, only the provision contradicting the KSchG is ineffective, or only partial nullity occurs. However, the remaining provisions of the General Terms and Conditions and the legal transaction generally remain valid and effective.
- The provisions of Austrian substantive law apply exclusively as a subsidiary – in particular UWG, UGB, KSchG, UrhebG, PatentG, MusterschG, trademark law; this to the exclusion of the IPRG and UN sales law.
- For all legal disputes arising from the legal relationship between P&S and the client, the jurisdiction of the court responsible for the district of Mödling is agreed subject-matter and locally, unless the jurisdiction is not disposable due to mandatory legal standards.
II. Intellectual property, usage and exploitation rights
- Due to the legal transactions concluded between P&S on the one hand and client on the other hand, intellectual property rights, rights of use or exploitation rights to the products and services (works & creations) created by P&S are never transferred to the client and remain with P&S in any case. The client is therefore only permitted to use the products and services in the context of the legal transaction. Any further use or exploitation, as well as changes to the product or service, require the express consent of P&S and, if approved, an appropriate fee is deemed to be agreed.
- In the event that a legal transaction does not materialize, but in the pre-contractual relationship, drafts, plans, sketches, texts, images or sound samples and the like have been handed over to the client, these must be surrendered or destroyed immediately at the option of P&S. The client is prohibited from using or utilizing such designs, plans, sketches, texts, images or sound samples and the like by the client.
- If the client provides its own materials (images, texts, sound samples and the like) as part of the service provided by P&S, the client also guarantees that they are authorized to use and exploit without restriction – at least for the provision of the agreed service by P&S. The client expressly undertakes to indemnify and hold P&S harmless in the event of claims by authorized third parties.
- P&S is entitled to indicate on all of its advertising and information materials, products and services free of charge that they originate from it.
III. Order / Scope of service
- The order has to be placed in writing – be it through a jointly signed certificate, be it through a written offer or a written offer acceptance. The order is placed when the joint document has been signed by both parties or an offer made by P&S has been accepted by the client in writing and the accepted offer has also been received by P&S.
- If, during the performance of the contract, changes are necessary in the implementation of the agreed service – particularly with regard to the location, timing and design of individual elements of the project – P&S can plan and implement such changes in consultation with the client. Such changes must be announced by P&S in writing to the client and confirmed by the client.
However, the client must agree to such changes in any event if the essential features of the project remain unaffected and the change is not unreasonable for the client.
If such changes are associated with additional services on the part of P&S, P&S must notify the client. Such additional services can be charged by P&S to the client.
If such a change results in a reduction in the agreed scope of services, the agreed fee will only be reduced if the agreed service is reduced by more than 10%.
- P&S generally performs the agreed service itself and on its own responsibility. However, P&S is entitled to use third parties to provide services, either through subcontractors or through other service providers.
The provision of services by other service providers – in particular the transport of people and materials – must be explicitly stated in the offer. By accepting the offer, the client authorizes P&S to commission third parties in the name and for the account of the client with regard to such services identified in the offer. The care of such services by P&S is compensated for by the handling package listed in the offer.
Subcontractors are responsible for and on behalf of P&S and do not create any contractual or other legal relationship with the client.
- P&S is obliged to fulfill the order with the proper care of a prudent businessman. In particular, P&S is obliged to plan the intended project conscientiously, to advise the client professionally, to carefully select both subcontractors and service providers and to ensure and monitor the implementation.
The client is obliged to participate in the agreed extent in the implementation or performance, to make the necessary decisions immediately and to name the persons authorized to make decisions for this purpose and to provide the agreed materials in accordance with the agreement.
- The scope of performance, the type of performance and the time of performance result exclusively from the performance description contained in the order or the project changes announced in writing.
- The client must notify P&S in writing of any defects immediately after they are discovered.
- The warranty period is – with the exception of a consumer transaction within the meaning of the KSchG – agreed at six months and begins on the day the service is performed.
- P&S primarily has to remedy the defect either by replacement or improvement within a reasonable period. If this is not possible, does not make economic sense, or if the replacement service or improvement is not carried out properly, the client is then entitled to a reduction in the fee. If there are significant, unrecoverable defects, the client has the right to change the contract.
- Consequential damages are excluded – except in the case of gross negligence or intent.
- The other liability of P&S or its organs and employees is limited to gross negligence and wilful misconduct.
- Damage payments due to personal injury or death attributable to P&S (including consequential damage) are limited to the amount actually paid by the P&S liability insurer. The client expressly waives any further claims in this regard.
Other liability is limited to 10% of the total order amount – however a maximum of € 10,000.00.
- P&S is only liable with regard to the service providers to the extent of the fault of selection.
- Liability according to the Product Liability Act remains completely unaffected, but the client – insofar as the producer of the product, which is causal, is based in the EU – has to assert the claims directly at the producer, otherwise at the general importer into the EU.
- In the event that force majeure, which was not foreseeable when the contract was concluded, rendered the service provision by P&S impossible, significantly more difficult or endangered, P&S has the right to terminate the contract immediately. In this case, however, P&S is entitled to the remuneration for the service already rendered, as well as a reasonable compensation (agreed remuneration less own savings) for the service not yet rendered.
- P&S assumes no liability whatsoever regarding the admissibility of the services or products in terms of competition and labelling law, unless such violations of the law had to be objectively recognized by P&S. The AG is solely responsible for checking the admissibility of competition law and labelling law.
V. Inspection obligation / Notice of defects
- In addition to point IV. 2. it is agreed that the products or services provided by P&S must be immediately accepted by the client and checked for completeness and agreed quality. Defects and other breaches of duty on the part of P&S, which are determined, must be reported to P&S in writing immediately – but no later than five days after delivery / rendering of the service. Such a notice of defects must show the identified defects / failures in a concrete and specified manner.
- Defects / failures that could not be objectively recognized by the client when the goods were handed over or rendered, must be reported to P&S at the latest five days after the discovery of such defects / failures, whereby point 1 applies accordingly.
- If the client fails to give notice of defects or incorrect services in accordance with the above agreement, the service / product provided is deemed to have been provided properly and in accordance with the contract. Claims for recourse remain unaffected.
VI. Contract processing
- The order placed is processed in three phases, namely concept phase, planning phase and completion or final production phase. The time frame of the phases is determined according to the performance description.
- After fulfillment of the agreed service, the client is obliged to accept it, whereby a written declaration of acceptance can be requested from P&S.
- P&S is entitled to provide the agreed service also in partial services or to demand the acceptance of partial services by the client and the client is also obliged to partial acceptance. Insignificant defects do not justify the refusal to accept partial services.
- To secure advance payments to third parties – especially with regard to reservation costs, deposits, means of transport, purchases, etc. – P&S is entitled to request a reasonable advance payment.
- The agreed delivery and completion dates are only finally binding for P&S if the client has also met the obligation to provide materials in good time or the other obligation to cooperate (point II. 3.) on time.
Except where a fixed transaction has been expressly agreed, the client is only entitled to derive claims from the delay in performance in the event of default by P&S if the client has set a reasonable grace period for performance and this has expired without result.
- If the client does not meet its agreed obligation to cooperate, P&S is not liable for the consequences of the delay. P&S is not obliged to separately remind the client of meeting deadlines. If an increase in the cost of the project is necessary due to late cooperation caused by the client, in particular regarding Sundays, public holidays, night work, cancellation costs, rebooking costs etc., such costs are to be reimbursed by the client, whereby P&S is again obliged to keep such costs down.
VII. Terms of payment
- All invoices placed by P&S are due upon invoicing and are to be paid by the client free of charge after receipt of the invoice.
- If the order amount is more than € 10,000.00 net, P&S is entitled to invoice 50% of the total order amount when placing the order and a further 30% of the total order amount 28 days before finalizing the project.
- If the agreed budget changes in the course of the project development, P&S is entitled to request further account assignments in such a way that the account assignments mentioned in point 2 are “replenished” to the stated percentages of the changed total order amount.
- For late payments by the client, default interest is agreed in accordance with the statutory interest rate for merchants; Reminder fees, collection expenses and costs of legal representation are to be reimbursed by the client.
- If the client is in arrears with agreed payments, P&S is entitled to refuse / withhold the further service until the client has paid, so that all agreed delivery and production deadlines lose their validity in the event of late payment.
- The client is not entitled to offset any claims against P&S against claims for P&S arising from the legal transaction, unless the claims are expressly recognized and judicially determined.
- In the event of cancellations of legal transactions by the client, P&S is entitled to request payments from the client as follows:
As of the order confirmation: 30% of the total remuneration
As of 28 days prior to the time and date of provision of services: 50% of the total remuneration
As of 14 days prior to the time and date of provision of services: 80% of the total remuneration
As of 7 days prior to the time and date of provision of services: 50% of the total remuneration
VIII. Final Provisions
Should individual provisions in the legal relationship between P&S and AG be ineffective or lose effectiveness due to a later circumstance, the effectiveness of the contract remains entirely intact. In this regard, there is only partial invalidity with regard to the legally invalid provision concerned.