Advertising agency dmp
Digital Motion Picture Data Processing GmbH
Fürstenstrasse 13, 2344 Maria Enzersdorf, Austria
Managing directors Janine Wald, Michael Wald
tel +43 2236 3840 41 / fax +43 1 253 30338092 / email email@example.com
FN 221.307b, Commercial Court Vienna / UID ATU54245703
Bank account DIE ERSTE BANK / account number 03855554 / bank code 20111
BIC GIBAATWWXXX / IBAN AT202011100003855554
The use of our website (agentur-dmp) is generally possible without providing personal data. As far as on our sides personal data (such as name, address or e-mail addresses) are collected, this is as far as possible on a voluntary basis. This data will not be passed on to third parties without your express consent.
We point out that data transmission over the Internet (eg communication by e-mail) security gaps. A complete protection of the data against access by third parties is not possible.
The use of contact data published within the framework of the imprint obligation by third parties for the purpose of sending unsolicited advertising and information materials is hereby expressly prohibited. The operators of the pages expressly reserve the right to take legal action in the event of the unsolicited sending of advertising information, such as spam e-mails.
GENERAL TERMS AND CONDITIONS OF
Advertising agency dmp, Digital Motion Picture Data processing GmbH (IN THE FOLLOWING: called dmp)
§ 1 SCOPE OF APPLICATION
1.1 dmp provides its services exclusively on the basis of the following General Terms and Conditions. These also apply to all future business relationships, even if they are not expressly referred to.
1.2 Deviations from these as well as other supplementary agreements with the customer are only effective if they are confirmed in writing by Dmp.
1.3 Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to its purpose.
1.4 Dmp’s offers are subject to change and non-binding.
§ 2 CONCLUSION OF CONTRACT
2.1 The basis of the business relationship is the respective contract, which specifies the defined scope of services as well as the fees or consideration on the part of the customer. Assurances made by dmp or its agents are only valid if they are also confirmed in writing.
§ 3 FEE, RETENTION OF TITLE AND PAYMENT
3.1 The amount of the fee is shown on the one hand in the respective valid fee guidelines of dmp and applies if no other prices are offered in the quotation. All prices are exclusive of value added tax. With the conclusion of the contract, the client confirms their knowledge and appropriateness. In the absence of an agreement in the individual case, dmp is entitled to a fee in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.
3.2 Order changes or additional orders will be invoiced according to the currently valid fee guidelines of dmp or based on further offers accepted by the customer. All services of dmp, which are not expressly compensated by the agreed fee, are paid separately. All cash expenses incurred by dmp are to be reimbursed by the customer.
3.3 The fee claim of dmp arises for each service rendered. This also applies to services provided by dmp that cannot be implemented as intended for reasons for which dmp is not responsible. Cost estimates of dmp are non-binding. If it is foreseeable that the actual costs will exceed those estimated by Dmp in writing by more than 15%, Dmp will inform the customer of the higher costs. The cost overrun is considered to be approved by the customer if the customer does not object in writing within three working days after this notice and at the same time announces less expensive alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the customer from the outset.
3.4 dmp is entitled to demand payments on account for the agreed fee as well as for cash expenses. In the case of project orders, the first 50% of the fee is due upon placement of the order and the remaining half upon completion of the project. For cash expenses, reasonable payments on account are due upon placement of the order.
3.5 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenditures. The object of purchase or the goods delivered by dmp remain the property of dmp until the purchase price and all associated costs and expenses have been paid in full. In case of even partial default of payment, we are entitled to collect the goods even without the buyer’s consent. In case of late payment, dmp is entitled to charge the necessary reminder and collection costs as well as interest on arrears in the amount of 12% per annum. This also includes the costs of two reminder letters in the amount customary in the market as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected. dmp is entitled to assign the dunning and collection process to professional party representatives, whereby the costs in this case are determined according to the Austrian Lawyers’ Fees Act. In the case of default of payment by the customer, Dmp can immediately call due all services and partial services rendered within the framework of other contracts concluded with the customer. Furthermore, Dmp is not obligated to provide further services until the outstanding amount is paid. If payment in installments was agreed upon, Dmp reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (forward loss).
3.6 For all work of Dmp that is not carried out by the customer for whatever reason, Dmp is entitled to the agreed fee. The offsetting provision of § 1168 AGBG is excluded. With the payment of the fee, the customer does not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed are to be returned to Dmp immediately.
§ 4 PRESENTATIONS
4.1 Presentations by dmp are compensated by an appropriate fee according to the valid fee guidelines. If no contract is concluded after the presentation, the presentation documents must be returned to dmp immediately. Any use of services rendered on the occasion of the presentation, in particular idea or raw concepts, is not permitted regardless of the copyright.
4.2 If ideas and concepts for the solution of communication tasks submitted in the course of a presentation are not utilized in advertising materials designed by dmp, dmp is entitled to use the ideas and concepts presented elsewhere.
4.3 If the presentation leads to the placement of an order, the presentation fee will be credited to the final fee. The transfer of presentation documents to third parties as well as their publication, duplication or distribution is not permitted without the written consent of dmp.
§ 5 PROPERTY RIGHTS AND COPYRIGHT PROTECTION
5.1 All services provided by dmp remain its unrestricted property. Documents made available can be reclaimed at any time – especially in the event of termination or cancellation of the contract. Documents that have not been executed are to be handed over to dmp immediately upon request. Otherwise, delivered goods remain the property of dmp until full payment has been made.
5.2 By paying the fee in full, the customer only acquires the right to use the services provided for the agreed purpose and in the agreed scope of use. Unless otherwise agreed, the customer may only use dmp’s services himself, exclusively in Austria and only for the duration of the contractual relationship.
5.3 The consent of dmp is required for the use of services or advertising materials after termination of the contract. For this, dmp is entitled to an appropriate remuneration, which is broken down according to the duration and scope of the further use.
§ 6 IDENTIFICATION
dmp is entitled to refer to itself or to the originator in all advertising media and measures used, without the customer incurring any claim to remuneration for this. Subject to the written revocation of the customer, which is possible at any time, dmp is entitled to refer to the existing business relationship with the customer on its own advertising media and in particular on its internet website with name and company logo (reference).
§ 7 OBLIGATION OF THE CUSTOMER TO VERIFY
7.1 All services provided by dmp (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be reviewed by the customer and approved within three working days of receipt by the customer. If they are not released in time, they shall be deemed to have been approved by the customer.
7.2 All services of dmp that are to be implemented externally (e.g. posters, brush prints, etc.) are to be checked by the customer and approved within one day. If no declaration of the customer is received within this period, no matter what, the implementation is considered to be approved by the customer.
7.3 The customer must check the legal, competition and trademark law permissibility of all services of dmp itself. An external legal review will only be arranged at the written request of the customer, who must bear the associated costs. The customer will only approve advertising measures proposed by dmp if he has himself ascertained that they are unobjectionable under competition or trademark law or if he is prepared to bear the risk associated with the implementation of the advertising measure or the use of the trademark.
§ 8 DATES
8.1 Failure to meet deadlines only entitles the customer to assert legal rights if a grace period of at least 14 days granted after a written reminder has passed unused. Any claims arising from the titles of warranty or compensation for damages only exist in the case of intent or gross negligence on the part of dmp. Unavoidable or unforeseeable events – in particular delays on the part of their agents – do not give rise to any consequences of delay.
8.2 Unless expressly agreed as binding, stated delivery or service deadlines are only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed by dmp in writing.
8.3 If the delivery/service of dmp is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the service obligations shall be suspended for the duration and to the extent of the obstacle and the deadlines shall be extended accordingly. If such delays last more than two months, the customer and dmp are entitled to withdraw from the contract.
§ 9 WARRANTY AND COMPENSATION
9.1 The customer must submit any complaints to dmp in writing within 5 days after the service has been rendered and give reasons. Otherwise, the service is considered approved. If the complaint is justified and made in time, the customer has the right to improve the service. Dmp shall remedy the defects within a reasonable period of time, whereby the customer shall enable Dmp to take all measures necessary to examine and remedy the defects. Dmp has the right to refuse to improve the service if this is impossible or involves a disproportionately high effort for Dmp. In this case, the customer is entitled to the legal rights of conversion or reduction. In the case of improvement, it is the responsibility of the customer to carry out the transfer of the defective (physical) item at his own expense. The customer is only entitled to claims for a reduction in payment or for redhibitory action if dmp’s attempts to remedy the defects have failed even after one month.
9.2 Any liability of dmp for any damages is excluded by mutual agreement, unless dmp can be proven to have acted with intent or gross negligence in the breach of main contractual obligations. The customer’s right to warranty remains unaffected in accordance with these GTC. Claims for damages by the customer for consequential damages are excluded in any case.
9.3 dmp expressly does not provide any warranty in the event that a service provided by it does not achieve any success or does not achieve the success hoped for.
9.4 Furthermore, the customer is obligated to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties. Dmp is not liable for any infringement of such rights. If a claim is made against Dmp due to such an infringement of rights, the customer shall indemnify and hold Dmp harmless; the customer shall compensate Dmp for all disadvantages incurred by Dmp due to a claim made by a third party.
9.5 dmp is entitled at any time to reject or remove materials, documents, etc. provided by the customer for processing that violate applicable law or for which there is a reasonable suspicion in this regard, without the customer incurring any claims of any kind.
9.6 The customer is exclusively responsible for compliance with legal provisions, in particular competition and trademark law, or professional regulations for advertising measures that are implemented (see § 7.2). Accordingly, any liability of dmp is excluded in any case. The customer declares to indemnify and hold dmp harmless for any claims of third parties based on such a violation.
§ 10 Liability and Product Liability
10.1 In cases of slight negligence, liability of Dmp for material or financial damage 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.
10.2 Any liability of Dmp for claims made against the customer based on the service provided by Dmp (e.g. advertising measure) is expressly excluded if Dmp has fulfilled its duty to inform or if such a duty was not recognizable to it, whereby slight negligence does not harm. In particular, Dmp is not liable for legal costs, customer’s own attorney’s fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; customer shall indemnify and hold Dmp harmless in this regard.
10.3 Customer’s claims for damages expire six months after knowledge of the damage; in any case, however, after three years after the infringing act of Dmp. Claims for damages are limited to the net order value.
§ 11 Data protection (optical highlighting according to case law)
The customer expressly agrees that Dmp automatically determines, stores and processes the data disclosed by the customer (name, address, e-mail, credit card data, data for account transfer) for the purpose of fulfilling the contract and supporting the customer as well as for its own advertising purposes. The client agrees that electronic mail may be sent to him for advertising purposes until revoked.
§ 12 Third-party services / commissioning of third parties
12.1 Dmp is entitled, at its own discretion, to perform the service itself, to use expert third parties as vicarious agents for the provision of services that are the subject matter of the contract and/or to substitute such services (“third-party service”).
12.2 The commissioning of third parties within the scope of an external service is carried out either in its own name or in the name of the customer, but in any case for the account of the customer. Dmp will carefully select this third party and ensure that it has the necessary professional qualifications.
12.3 Insofar as Dmp commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of Dmp.
§ 13 TERMINATION OF CONTRACT
The contract shall end with its contractually agreed term without the need for termination. If the contract was concluded for an indefinite period, it may be terminated by either party with three months’ notice to the end of the respective month. Immediate termination of the contract for good cause shall remain unaffected.
§14 DUTY OF CONFIDENTIALITY
14.1 dmp promises the customer confidentiality about all matters that become known to it in connection with its activities about the customer and are not intended for the public. It will ensure that this confidentiality obligation is also fulfilled by its employees and agents. This obligation to maintain confidentiality shall also apply after termination of the contract.
14.2 However, this contractual duty of confidentiality does not apply in the context of legal proceedings or vis-à-vis a professional party representative who is obliged to maintain confidentiality, in particular in a judicial or extrajudicial dispute with the customer (e.g. fee action), insofar as this is necessary to protect the rights of dmp.
14.3 Notwithstanding this obligation to maintain confidentiality, dmp is entitled for an unlimited period of time and irrevocably to include the customer and, if applicable, a brief description of the service provided for the customer in its reference list and to use this information for advertising and presentation purposes in any fair manner, in particular also on the Internet.
§ 15 FULL POWER
15. the customer grants dmp the power of attorney to commission supplies or services required for the implementation of agreed PR or advertising concepts (e.g. photos, printed works, trademark applications, etc.) from authorities or external professionals in the customer’s name and for the customer’s account at standard market conditions.
§ 16 FINAL PROVISIONS
16.1 The customer is not entitled to offset counterclaims against dmp’s claims or to withhold payments with reference to defects. A customer may only set off or assert a right of retention against claims that are expressly recognized by dmp or have been legally established.
16.2 The place of performance and jurisdiction is the registered office of dmp. Austrian law shall apply exclusively. In the event of infringements of property rights abroad, however, the standard that is more favorable for dmp shall apply.
16.3 Amendments, supplements and ancillary agreements to these GTC or to the GRAPHICS and Advertising Contract as well as assurances of any kind must be made in writing in order to be effective. This also applies to any agreement to deviate from this formal requirement.