Terms and Conditions
1. Validity, Conclusion of Contract
1.1 Wiener Kaiser Wiesn GmbH (hereinafter „WKW“) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between WKW and the customer, even if they are not expressly referred to.
1.2 The version in effect at the time of the conclusion of the contract is decisive. Deviations from these as well as other supplementary agreements with the customer are only effective if they are confirmed in writing by Wiener Kaiser Wiesn GmbH.
1.3 Any terms and conditions of the customer will not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. Wiener Kaiser Wiesn GmbH expressly objects to the customer's terms and conditions. Wiener Kaiser Wiesn GmbH does not require any further objection to the customer's terms and conditions.
1.4 Changes to the General Terms and Conditions will be communicated to the customer and are considered agreed upon if the customer does not object in writing within 14 days; the customer will be expressly informed of the significance of silence in the communication.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and contracts concluded on their basis. The invalid provision shall be replaced by a valid one that comes closest to the meaning and purpose.
Social Media Channels
Wiener Kaiser Wiesn GmbH expressly points out to the customer before placing the order that the providers of „social media channels“ (e.g. facebook, hereinafter referred to as „provider“) reserve the right in their terms of use to refuse or remove advertisements and appearances for any reason. The providers are therefore not obliged to forward content and information to users. Therefore, Wiener Kaiser Wiesn GmbH runs the incalculable risk that advertisements and appearances may be removed for no reason. In the event of a complaint from another user, the providers will grant the option of a counterstatement, but even in this case the content will be removed immediately. In this case, it may take some time to restore the original, lawful status. Wiener Kaiser Wiesn GmbH works on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer's order on them. By placing an order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. Wiener Kaiser Wiesn GmbH intends to carry out the customer's order to the best of its knowledge and belief and to comply with the guidelines of "social media channels". However, due to the currently valid terms of use and the simple possibility for any user to claim legal violations and thus achieve the removal of the content, Wiener Kaiser Wiesn GmbH cannot guarantee that the commissioned campaign will be available at all times.
3. Concept and Idea Protection
If the potential customer Wiener Kaiser Wiesn GmbH has previously invited the creation of a concept, and Wiener Kaiser Wiesn GmbH acts on this invitation before the conclusion of the main contract, the following regulation shall apply:
3.1 Already through the invitation and the acceptance of the invitation by Wiener Kaiser Wiesn GmbH, the potential client and Wiener Kaiser Wiesn GmbH enter into a contractual relationship („Pitching Agreement“). These Terms and Conditions also form the basis of this agreement.
3.2 The potential customer acknowledges that Wiener Kaiser Wiesn GmbH already incurs cost-intensive advance performance for concept development, even though they themselves have not yet assumed any performance obligations.
3.3 The concept, in its linguistic and graphical parts, as far as these reach the level of a work, is subject to protection under copyright law. Use and modification of these parts without the consent of Wiener Kaiser Wiesn GmbH are not permitted to the potential customer by copyright law alone.
3.4 Furthermore, the concept includes advertising-relevant ideas that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark of everything subsequently produced and thus as the origin of the marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic imprint. Advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., are considered ideas in the sense of this agreement, even if they do not reach the level of a work.
3.5 The potential client undertakes to refrain from economically exploiting or arranging for the exploitation of creative advertising ideas presented by Wiener Kaiser Wiesn GmbH within the scope of the concept, or from using or arranging for the use of such ideas, outside the scope of a main contract to be concluded at a later date.
3.6 If the potential client believes that ideas were presented to them by Wiener Kaiser Wiesn GmbH that they had already arrived at before the presentation, they must notify Wiener Kaiser Wiesn GmbH via email within 14 days of the presentation date, providing evidence that allows for chronological attribution.
3.7 In the contrary case, the contracting parties assume that Wiener Kaiser Wiesn GmbH has presented a new idea to the potential customer. If the idea is used by the customer, it is to be assumed that Wiener Kaiser Wiesn GmbH has thereby earned merit.
3.8 The potential customer can be released from his obligations under this clause by paying reasonable compensation plus 20 % VAT. The release will only take effect upon full receipt of the compensation payment at Wiener Kaiser Wiesn GmbH.
4. Scope of Services, Order Processing, and Customer's Duty to Cooperate
4.1 The scope of services to be provided shall be defined by the service description in the offer from Wiener Kaiser Wiesn GmbH and any subsequent briefing minutes (= „Offer Documents“). Subsequent changes to the scope of services require written confirmation by WKW. Within the framework specified by the client, Wiener Kaiser Wiesn GmbH shall have creative freedom in fulfilling the contract.
4.2 All services provided by Wiener Kaiser Wiesn GmbH (in particular, all preliminary drafts, sketches, final drawings, proofs, blueprints, copies, color prints, and electronic files) are to be reviewed by the customer and approved by them within three business days of receipt by the customer. If the customer does not respond within this period, the services will be considered approved by the customer.
4.3 The customer will provide Wiener Kaiser Wiesn GmbH with timely and complete access to all information and documents required for the provision of services. The customer will inform Wiener Kaiser Wiesn GmbH of all circumstances relevant to the execution of the order, even if they become known during the execution of the order. The customer shall bear the costs incurred because work has to be repeated or is delayed as a result of incorrect, incomplete or subsequently changed information provided by WKW.
4.4 The customer is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. WKW shall not be liable in the event of merely slight negligence or after fulfillment of the duty to warn - at least in the internal relationship with the customer - due to an infringement of such third-party rights by documents provided. If a claim is made against Wiener Kaiser Wiesn GmbH by a third party due to such an infringement of rights, the customer shall indemnify and hold Wiener Kaiser Wiesn GmbH completely harmless; the customer shall compensate Wiener Kaiser Wiesn GmbH for all disadvantages incurred by Wiener Kaiser Wiesn GmbH as a result of a claim by a third party, in particular also the costs of appropriate legal representation. The customer undertakes to support Wiener Kaiser Wiesn GmbH in the defense against any third-party claims. The customer shall provide Wiener Kaiser Wiesn GmbH with all documents for this purpose without being requested to do so.
5. Services by Third Parties / Commissioning Third Parties
5.1 Wiener Kaiser Wiesn GmbH is entitled, at its sole discretion, to perform the service itself, to use expert third parties as vicarious agents for the provision of contractually agreed services, and/or to subcontract such services („third-party services“).
5.2 The commissioning of third parties within the scope of outsourced services is carried out either in our own name or in the name of the client. Wiener Kaiser Wiesn GmbH will carefully select these third parties and ensure that they possess the necessary professional qualifications.
5.3 The customer shall assume obligations towards third parties that extend beyond the term of the contract. This expressly applies in the event of termination of the contract for good cause.
6. Finish
6.1 The specified delivery or performance deadlines are, unless expressly agreed as binding, only approximate and non-binding. Binding appointment agreements must be recorded in writing or confirmed in writing by Wiener Kaiser Wiesn GmbH.
6.2 If the delivery/performance by Wiener Kaiser Wiesn GmbH is delayed due to reasons for which Wiener Kaiser Wiesn GmbH is not responsible, such as force majeure events and other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and extent of the impediment, and the deadlines shall be extended accordingly. If such delays last longer than two months, the customer and Wiener Kaiser Wiesn GmbH shall be entitled to withdraw from the contract.
6.3 If Wiener Kaiser Wiesn GmbH is in default, the customer may only withdraw from the contract after setting Wiener Kaiser Wiesn GmbH a reasonable grace period of at least 14 days in writing, and this period has expired without result. Claims for damages by the customer due to non-performance or default are excluded, except in cases of proven intent or gross negligence.
7. Premature Dissolution
7.1 Wiener Kaiser Wiesn GmbH is entitled to terminate the contract with immediate effect for good cause. Good cause exists in particular if
a) the performance of the service becomes impossible due to reasons attributable to the customer or is further delayed despite setting a grace period of 14 days;
b) the customer repeatedly breaches essential obligations under this contract, such as payment of an amount due or cooperation obligations, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns regarding the customer's creditworthiness, and the customer neither makes advance payments upon request by Wiener Kaiser Wiesn GmbH nor provides suitable security prior to performance by Wiener Kaiser Wiesn GmbH;
7.2 The customer is entitled to terminate the contract for good cause without setting a grace period. Good cause exists in particular if Wiener Kaiser Wiesn GmbH repeatedly breaches essential provisions of this contract, despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
8. Fee
8.1 Unless otherwise agreed, Wiener Kaiser Wiesn GmbH's claim to remuneration arises as soon as each individual service has been rendered. Wiener Kaiser Wiesn GmbH is entitled to demand advances to cover its expenses. For order volumes with an (annual) budget of EUR 10,000 (ten thousand Euros) or such as extend over a longer period, Wiener Kaiser Wiesn GmbH is entitled to issue interim invoices or advance invoices or to call up down payments.
8.2 The fee/remuneration is understood as a net fee plus the statutory value-added tax. In the absence of an individual agreement, Wiener Kaiser Wiesn GmbH is entitled to a fee for the services rendered and the transfer of copyright and trademark usage rights in the customary market amount.
8.3 All services from WKW, which are not expressly covered by the agreed fee, will be remunerated separately. All cash expenses incurred by Wiener Kaiser Wiesn GmbH must be reimbursed by the customer.
8.4 All cost estimates from Wiener Kaiser Wiesn GmbH are non-binding. If it becomes apparent that the actual costs will exceed the costs estimated in writing by Wiener Kaiser Wiesn GmbH by more than 15 %, Wiener Kaiser Wiesn GmbH will inform the customer of the higher costs. The cost overrun will be considered approved by the customer if the customer does not object in writing within three business days of this notification and simultaneously proposes more cost-effective alternatives. If the cost overrun is up to 15 %, separate notification is not required. This cost estimate overrun is considered approved by the client from the outset.
8.5 If the client unilaterally changes or cancels commissioned work without the involvement of WKW – without prejudice to the ongoing general support by WKW – they must compensate Wiener Kaiser Wiesn GmbH for the services rendered up to that point and reimburse all incurred costs. Unless the cancellation is justified by a grossly negligent or intentional breach of duty by WKW, the client must additionally reimburse Wiener Kaiser Wiesn GmbH for the entire fee/remuneration agreed upon for this order, whereby the set-off entitlement of § 1168 AGBG is excluded. Furthermore, Wiener Kaiser Wiesn GmbH must be indemnified and held harmless with regard to any claims by third parties, particularly from subcontractors of Wiener Kaiser Wiesn GmbH. Upon payment of the remuneration, the client acquires no rights of use for work already performed; undeveloped concepts, drafts, and other documents must be returned immediately to Wiener Kaiser Wiesn GmbH.
9. Payment, Retention of Title
9.1 Payment of the fee/remuneration is due within 14 days of receipt of the invoice, without any deductions, unless otherwise agreed in writing in individual cases. This also applies to the invoicing of all cash expenses and other costs. The goods delivered by Wiener Kaiser Wiesn GmbH remain the property of Wiener Kaiser Wiesn GmbH until full payment of the fee, including all ancillary liabilities.
9.2 In case of customer payment default, the statutory default interest rates applicable to commercial transactions shall apply. Furthermore, the customer undertakes to reimburse Wiener Kaiser Wiesn GmbH for the incurred reminder and collection costs in the event of payment default, to the extent they are necessary for appropriate legal action. This shall include, in any case, the costs of two reminder letters at the current market rate of at least EUR 20.00 (twenty Euros) per reminder, as well as one reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims shall remain unaffected thereby.
9.3 In case of customer payment default, Wiener Kaiser Wiesn GmbH may declare all services and partial services rendered within the scope of other contracts concluded with the customer immediately due and payable.
9.4 Furthermore, Wiener Kaiser Wiesn GmbH is not obligated to provide further services until the outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected by this.
9.5 If payment is agreed in installments, Wiener Kaiser Wiesn GmbH reserves the right to demand immediate payment of the entire outstanding debt in the event of non-timely payment of installments or ancillary claims (loss of term).
9.6 The customer is not entitled to offset their own claims against claims of Wiener Kaiser Wiesn GmbH, unless the customer's claim has been acknowledged in writing by Wiener Kaiser Wiesn GmbH or has been legally determined.
10. Payment terms for ticket purchase => applies to B2C as well as B2B
10.1 The purchase price for tickets is due for payment within 14 days of the invoice date.
10.2 Payment is to be made to the bank account of Wiener Kaiser Wiesn GmbH specified on the invoice. If the transaction is a consumer transaction on the customer's side, timely payment is considered to have been made if the transfer order is issued on the due date (§ 6a para 2 KSchG). If the transaction is a business-to-business transaction on the customer's side, timely payment is considered to have been made if the amount owed is received in the account of Wiener Kaiser Wiesn GmbH within the payment period (§ 907a ABGB).
10.3 Bei Zahlungsverzug hat der Kunde an die Kaiser Wiesn GmbH gesetzliche Verzugszinsen zu entrichten. Handelt es sich auf Seiten des Kunden um ein Verbrauchergeschäft, gilt für die Verzugszinsen ein Zinssatz von 4% (§ 1000 ABGB). Handelt es sich auf Seiten des Kunden um ein unternehmensbezogenes Geschäft, hat der Kunde die für Unternehmen einschlägigen gesetzlichen Verzugszinsen von 9,2% über dem Basiszinssatz (§ 456 UGB) sowie eine pauschale Entschädigung für Betreibungskosten von EUR 40 zu leisten (§ 458 UGB). Die Geltendmachung eines darüberhinausgehenden Verzugsschadens durch die Wiener Kaiser Wiesn GmbH bleibt in jedem Fall ausdrücklich vorbehalten.
11. Property Rights and Copyright
11.1 All services provided by Wiener Kaiser Wiesn GmbH, including those from presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final artwork, concepts, negatives, slides), and individual parts thereof, as well as individual works and original designs, remain the property of Wiener Kaiser Wiesn GmbH and can be reclaimed by Wiener Kaiser Wiesn GmbH at any time – especially upon termination of the contractual relationship. By paying the fee, the client acquires the right of use for the agreed purpose. Unless otherwise agreed, the client may only use the services of Wiener Kaiser Wiesn GmbH in Austria. The acquisition of usage and exploitation rights to services from Wiener Kaiser Wiesn GmbH requires in any case the full payment of the fees invoiced by Wiener Kaiser Wiesn GmbH for them. If the client uses the services of Wiener Kaiser Wiesn GmbH before this time, this use is based on a loan agreement that can be revoked at any time.
11.2 Modifications or revisions of services provided by Wiener Kaiser Wiesn GmbH, particularly their further development by the customer or by third parties acting on behalf of the customer, are only permitted with the express consent of Wiener Kaiser Wiesn GmbH and, insofar as the services are protected by copyright, of the author.
11.3 For the use of services from Wiener Kaiser Wiesn GmbH that go beyond the originally agreed-upon purpose and scope of use, the consent of Wiener Kaiser Wiesn GmbH is required – regardless of whether this service is protected by copyright. Wiener Kaiser Wiesn GmbH and the author are entitled to separate, appropriate remuneration for this.
11.4 For the use of services from Wiener Kaiser Wiesn GmbH or advertising materials for which Wiener Kaiser Wiesn GmbH has developed conceptual or design templates, the consent of Wiener Kaiser Wiesn GmbH is also necessary after fulfillment of the order, regardless of whether this service is protected by copyright or not.
11.5 For uses according to Section 4, Wiener Kaiser Wiesn GmbH is entitled to the full remuneration agreed upon in the expired contract in the first year after the end of the contract. In the second or third year after the end of the contract, only half or a quarter of the remuneration agreed upon in the contract, respectively. From the fourth year after the end of the contract, no remuneration is to be paid.
11.6 The customer is liable to Wiener Kaiser Wiesn GmbH for any unlawful use in double the amount of the fee appropriate for such use.
12. Labeling
12.1 Wiener Kaiser Wiesn GmbH is entitled to refer to Wiener Kaiser Wiesn GmbH and, if applicable, the author on all advertising materials and in all advertising measures, without the customer being entitled to any remuneration for this.
12.2 Wiener Kaiser Wiesn GmbH is entitled, subject to the customer's written revocation at any time, to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its website by name and company logo (reference note).
13. Warranty
13.1 The customer must report any defects immediately, at the latest within eight days after delivery/performance by Wiener Kaiser Wiesn GmbH, and hidden defects within eight days after discovering them, in writing, describing the defect; otherwise, the performance is considered accepted. In this case, the assertion of warranty and damage claims, as well as the right to contest errors due to defects, are excluded.
13.2 In the event of a justified and timely notice of defects, the customer has the right to repair or replacement of the delivery/service by Wiener Kaiser Wiesn GmbH. Wiener Kaiser Wiesn GmbH will remedy the defects within a reasonable period, with the customer enabling Wiener Kaiser Wiesn GmbH to take all necessary measures for inspection and remedy of defects. Wiener Kaiser Wiesn GmbH is entitled to refuse the repair of the service if it is impossible or associated with disproportionately high costs for WKW. In this case, the customer is entitled to the statutory rights of rescission or reduction. In the event of repair, the customer is responsible for sending the defective (physical) item at their own expense.
13.3 It is incumbent upon the customer to conduct the review of the contractually objectified performance for its legal, particularly competition law, trademark law, copyright law, and administrative law admissibility. Wiener Kaiser Wiesn GmbH is only obligated to perform a cursory review of legal admissibility. Wiener Kaiser Wiesn GmbH shall not be liable for the legal admissibility of content in cases of slight negligence or after fulfillment of any warning duty towards the customer, if such content was provided or approved by the customer.
13.4 The warranty period is six months from delivery/performance. The right of recourse against WKW according to § 933b para 1 AGBG expires one year after delivery/performance. The customer is not entitled to withhold payments due to defects. The presumption rule of § 924 AGBG is excluded.
14. Liability and Product Liability
14.1 In cases of slight negligence, the liability of WKW and its employees, contractors, or other vicarious agents („personnel“) for property damage or financial losses of the customer is excluded, regardless of whether they are direct or indirect damages, loss of profit, consequential damages, damages due to delay, impossibility, breach of primary obligation, fault during contract negotiation, or due to deficient or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that the liability of Wiener Kaiser Wiesn GmbH is excluded or limited, this also applies to the personal liability of its „personnel.“.
14.2 WKW expressly disclaims any liability for claims brought against the customer based on the performance provided by Wiener Kaiser Wiesn GmbH (e.g., advertising measures), if Wiener Kaiser Wiesn GmbH has fulfilled its duty to inform or if this was not discernible for Wiener Kaiser Wiesn GmbH, whereby slight negligence is not detrimental. In particular, Wiener Kaiser Wiesn GmbH is not liable for legal costs, the customer's own legal fees, or costs for publication of judgments, as well as for any claims for damages or other third-party claims; the customer shall indemnify and hold Wiener Kaiser Wiesn GmbH harmless in this regard.
14.3 Customer claims for damages shall expire six months after becoming aware of the damage, but in any case three years after the infringing act by Wiener Kaiser Wiesn GmbH. Claims for damages are limited in amount to the net order value.
15. Data Protection
Personal data of the customer (if the customer is a natural person) or personal data provided by the customer shall be processed exclusively on the basis of the statutory provisions (GDPR, DSG).
For the purpose of contract processing with the customer, the following personal data will be processed: Name/Company, occupation, date of birth, contact person, business address and other customer addresses, telephone number, fax number, email address, company registration number, bank details, credit card details, VAT identification number. The processing of this personal data is necessary for the performance of the contract or for the implementation of pre-contractual measures (Art. 6 para. 1 lit. b GDPR) and their provision is a prerequisite for the conclusion of the contract. Without this data, Wiener Kaiser Wiesn GmbH cannot conclude the contract.
Such data will only be forwarded to third parties if this is necessary for the purpose of contract processing or for billing purposes for WKW (e.g., to credit institutions or order processors that Wiener Kaiser Wiesn GmbH uses for the fulfillment of contracts with the customer). Some of these recipients are located outside the customer's country or process your personal data there. The level of data protection in other countries may not correspond to that in Austria. However, Wiener Kaiser Wiesn GmbH only transmits the customer's personal data to countries for which the EU Commission has decided that they have an adequate level of data protection, or we take measures to ensure that all recipients have an adequate level of data protection, for which we conclude standard contractual clauses (2010/87/EC and/or 2004/915/EC).
After the contract with the customer is terminated, the data from the contractual relationship will be deleted if it is no longer required for the purpose pursued by the processing and for the defense against possible legal claims by the customer, and provided that there are no statutory retention periods or other legal obligations that prevent deletion.
The customer has the rights to information, correction, deletion, restriction, data portability, withdrawal, and objection. Should the customer believe that the processing of their data violates data protection law or that their data protection rights have otherwise been infringed, a complaint to the supervisory authority is possible. In Austria, this is the Data Protection Authority (www.dsb.gv.at).
For the purpose of referencing an existing or former business relationship with the customer (reference notice), the following personal data of Wiener Kaiser Wiesn GmbH will be processed and published on the homepage of Wiener Kaiser Wiesn GmbH: Name/Company, profession of the customer. The processing of this personal data for the purpose of inclusion in reference notices is based on Art. 6(1)(f) GDPR, as WKW has a legitimate interest in processing this personal data in order to advertise the services of Wiener Kaiser Wiesn GmbH to potential clients, to initiate business transactions, and to improve the service offering and online presence. The customer further gives his explicit consent according to Art. 6(1)(a) GDPR to the processing of this personal data for the purpose of inclusion in reference notices.
The controller for the processing of personal data is Wiener Kaiser Wiesn GmbH, Managing Director: Johann Pittermann, Windmühlgasse 26, 1060 Vienna
16. Applicable Law
The contract and all reciprocal rights and obligations arising therefrom, as well as claims between Wiener Kaiser Wiesn GmbH and the customer, shall be governed by Austrian substantive law, excluding its conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods.
17. Place of Performance and Jurisdiction
17.1 The place of performance is the registered office of Wiener Kaiser Wiesn GmbH. In the case of delivery, the risk passes to the customer as soon as Wiener Kaiser Wiesn GmbH has handed over the goods to the carrier chosen by it.
17.2 The court of competent jurisdiction for all legal disputes arising between Wiener Kaiser Wiesn GmbH and the customer in connection with this contractual relationship shall be the court that is materially competent for the registered office of Wiener Kaiser Wiesn GmbH. Notwithstanding the foregoing, Wiener Kaiser Wiesn GmbH is entitled to sue the customer at his general place of jurisdiction.
17.3 Wherever designations referring to natural persons are used in this contract in the masculine form, they shall refer to women and men equally. When applying the designation to specific natural persons, the gender-specific form shall be used.