General terms and conditions of business

1. Validity, conclusion of contract

1.1 Wiener Kaiser Wiesn GmbH (hereinafter referred to as "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 no express reference is made to them.
1.2 The version valid at the time the contract is concluded is decisive. Deviations from these and other supplementary agreements with the customer are only valid 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 they are known, unless otherwise expressly agreed in writing in individual cases. Wiener Kaiser Wiesn GmbH expressly objects to the customer's terms and conditions. Wiener Kaiser Wiesn GmbH does not need to object to the customer's terms and conditions any further.
1.4 Changes to the General Terms and Conditions will be announced to the customer and will be deemed agreed if the customer does not object to the changed General Terms and Conditions in writing within 14 days; The customer is expressly informed of the importance of silence in the communication.
1.5 If individual provisions of these General Terms and Conditions are invalid, this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision must be replaced by an effective one that comes closest to the meaning and purpose.

2. Social media channels

Before placing an order, Wiener Kaiser Wiesn GmbH expressly informs the customer that the providers of "social media channels" (e.g. Facebook, hereinafter referred to as the provider) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which Wiener Kaiser Wiesn GmbH cannot calculate, that advertisements and appearances will be removed without reason. In the event of a complaint from another user, the providers do grant the opportunity to submit a counterstatement, but in this case the content will also be removed immediately. In this case, restoring the original, legal state can take some time. 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 these. 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 easy possibility for every user to claim violations of law and thus have the content removed, 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 has already invited Wiener Kaiser Wiesn GmbH to create a concept in advance and Wiener Kaiser Wiesn GmbH accepts this invitation before the conclusion of the main contract, the following regulation applies:
3.1 The invitation and acceptance of the invitation by Wiener Kaiser Wiesn GmbH means that the potential customer and Wiener Kaiser Wiesn GmbH enter into a contractual relationship (“pitching contract”). This contract is also based on the General Terms and Conditions.
3.2 The potential customer acknowledges that Wiener Kaiser Wiesn GmbH is already providing cost-intensive preliminary services by developing the concept, although it has not yet assumed any performance obligations itself.
3.3 The concept is subject to copyright protection in its linguistic and graphic parts, insofar as these reach the level of a work. The potential customer is not permitted to use or edit these parts without the consent of Wiener Kaiser Wiesn GmbH, based on copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the heights 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 igniting spark of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are considered ideas within the meaning of this agreement, even if they do not reach the height of the work.
3.5 The potential customer undertakes not to commercially exploit or have exploited or use or have used the creative advertising ideas presented by Wiener Kaiser Wiesn GmbH as part of the concept outside the corrective measures of a main contract to be concluded at a later date.
3.6 If the potential customer is of the opinion that Wiener Kaiser Wiesn GmbH has presented him with ideas which he had already thought of before the presentation, he must inform Wiener Kaiser Wiesn GmbH of this by email within 14 days of the day of the presentation, citing evidence which allows a temporal assignment.
3.7 In the opposite case, the contracting parties assume that Wiener Kaiser Wiesn GmbH has presented the potential customer with a new idea. If the customer uses the idea, it can be assumed that Wiener Kaiser Wiesn GmbH has earned credit for it.
3.8 The potential customer can be released from his obligations under this point by paying an appropriate compensation plus 20% VAT. The release only takes effect after the compensation payment has been received in full by Wiener Kaiser Wiesn GmbH.

4. Scope of services, order processing and the customer's obligation to cooperate

4.1 The scope of the services to be provided is determined from the service description in the offer from Wiener Kaiser Wiesn GmbH and any briefing protocol (= "offer documents"). Subsequent changes to the content of the service require written confirmation by WKW. Wiener Kaiser Wiesn GmbH has freedom of design when fulfilling the order within the framework specified by the customer.
4.2 All services provided by Wiener Kaiser Wiesn GmbH (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by him within three working days of receipt by the customer. After this period has expired without feedback from the customer, they are deemed to have been approved by the customer.
4.3 The customer will provide Wiener Kaiser Wiesn GmbH with all information and documents required for the provision of the service in a timely and complete manner. The customer will inform Wiener Kaiser Wiesn GmbH of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer will bear the costs that arise because work has to be repeated or delayed by WKW as a result of the customer's incorrect, incomplete or subsequently changed information.
4.4 The customer is also obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, trademark rights or other rights of third parties (rights clearance) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of only slight negligence or after fulfilling the duty to warn - at least in the internal relationship with the customer - WKW is not liable for an infringement of such third-party rights by documents provided. If a third party makes a claim against Wiener Kaiser Wiesn GmbH for such an infringement, the customer shall hold Wiener Kaiser Wiesn GmbH harmless and indemnify it; it must compensate Wiener Kaiser Wiesn GmbH for all disadvantages that Wiener Kaiser Wiesn GmbH incurs as a result of a claim by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support Wiener Kaiser Wiesn GmbH in defending against any claims by third parties. The customer shall provide Wiener Kaiser Wiesn GmbH with all documents for this purpose without being asked to do so.

5. Third-party services / commissioning of third parties

5.1 Wiener Kaiser Wiesn GmbH is entitled, at its own discretion, to carry out the service itself, to use knowledgeable third parties as vicarious agents in the provision of contractual services and/or to substitute such services (“third-party services”).
5.2 The commissioning of third parties as part of an external service takes place either in the company's own name or in the name of the customer. Wiener Kaiser Wiesn GmbH will select this third party carefully and ensure that it has the necessary professional qualifications.
5.3 The customer must assume obligations towards third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the order for good cause.

6. Dates

6.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by Wiener Kaiser Wiesn GmbH.
6.2 If the delivery/service of Wiener Kaiser Wiesn GmbH is delayed for reasons for which Wiener Kaiser Wiesn GmbH is not responsible, such as events of force majeure and other unforeseeable events that cannot be avoided by reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and the deadlines are extended accordingly. If such delays last more than two months, the customer and Wiener Kaiser Wiesn GmbH are entitled to withdraw from the contract.
6.3 If Wiener Kaiser Wiesn GmbH is in default, the customer can only withdraw from the contract after he has given Wiener Kaiser Wiesn GmbH a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.

7. Premature dissolution

7.1 Wiener Kaiser Wiesn GmbH is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days;
b) the customer continues to violate essential obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns regarding the customer's creditworthiness and the customer does not make any advance payments or provide suitable security prior to the performance of the service by Wiener Kaiser Wiesn GmbH at the request of Wiener Kaiser Wiesn GmbH;
7.2 The customer is entitled to terminate the contract for important reasons without granting a grace period. An important reason exists in particular if Wiener Kaiser Wiesn GmbH continues to violate 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 is entitled to a fee for each individual service as soon as it has been provided. Wiener Kaiser Wiesn GmbH is entitled to demand advance payments to cover its expenses. For orders with an (annual) budget of EUR 10,000 (ten thousand euros) or over a longer period of time, Wiener Kaiser Wiesn GmbH is entitled to issue interim invoices or advance invoices or to request payments on account.
8.2 The fee/remuneration is understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, Wiener Kaiser Wiesn GmbH is entitled to a fee at the usual market rate for the services provided and the transfer of the copyright and trademark usage rights.
8.3 All services provided by WKW that are not expressly covered by the agreed fee will be paid for separately. All cash expenses incurred by Wiener Kaiser Wiesn GmbH must be reimbursed by the customer.
8.4 Any cost estimates from Wiener Kaiser Wiesn GmbH are non-binding. If it is foreseeable 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 is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time announces cheaper alternatives. If the cost overrun is up to 15%, a separate notification is not necessary. This cost overrun is deemed to have been approved by the customer from the outset.
8.5 If the customer unilaterally changes or cancels work that has been commissioned without involving WKW - without prejudice to the ongoing other support provided by WKW - he must pay Wiener Kaiser Wiesn GmbH for the services provided up to that point and reimburse all costs incurred. Unless the cancellation is due to a grossly negligent or intentional breach of duty by WKW, the customer must also reimburse Wiener Kaiser Wiesn GmbH for the entire fee/remuneration agreed for this order, whereby the offset remuneration under Section 1168 AGBG is excluded. Furthermore, Wiener Kaiser Wiesn GmbH must be indemnified and held harmless against any claims made by third parties, in particular by contractors of Wiener Kaiser Wiesn GmbH. By paying the fee, the customer does not acquire any rights of use for work that has already been carried out; concepts, drafts and other documents that have not been carried out must instead be returned to Wiener Kaiser Wiesn GmbH immediately.

9. Payment, retention of title

9.1 The fee/remuneration is due for payment within 14 days of receipt of the invoice and without deductions, unless special payment terms are agreed in writing in individual cases. This also applies to the passing on of all cash expenses and other expenses. The goods delivered by Wiener Kaiser Wiesn GmbH remain the property of Wiener Kaiser Wiesn GmbH until the fee has been paid in full, including all ancillary liabilities.
9.2 If the customer defaults on payment, the statutory default interest rate applicable to business transactions will apply. Furthermore, in the event of default in payment, the customer undertakes to reimburse Wiener Kaiser Wiesn GmbH for the reminder and collection costs incurred, insofar as they are necessary for appropriate legal action. This includes the costs of two reminder letters at the usual market rate of currently at least EUR 20.00 (twenty euros) per reminder, as well as one reminder letter from a lawyer commissioned to collect the debt. The assertion of further rights and claims remains unaffected.
9.3 In the event of default of payment by the customer, Wiener Kaiser Wiesn GmbH may immediately demand payment of all services and partial services provided under other contracts concluded with the customer.
9.4 Furthermore, Wiener Kaiser Wiesn GmbH is not obliged to provide any further services until the outstanding amount has been paid (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment in instalments has been agreed, Wiener Kaiser Wiesn GmbH reserves the right to demand immediate payment of the entire outstanding debt in the event of non-payment of partial amounts or additional claims on time (default).
9.6 The customer is not entitled to offset his 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 established by a court.

10. Ownership and Copyright

10.1 All services provided by Wiener Kaiser Wiesn GmbH, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and original designs remain the property of Wiener Kaiser Wiesn GmbH and can be reclaimed by Wiener Kaiser Wiesn GmbH at any time - in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use the services for the agreed purpose. Unless otherwise agreed, the customer may only use the services of Wiener Kaiser Wiesn GmbH in Austria. The acquisition of usage and exploitation rights to services provided by Wiener Kaiser Wiesn GmbH always requires full payment of the fees charged by Wiener Kaiser Wiesn GmbH. If the customer uses the services of Wiener Kaiser Wiesn GmbH before this point in time, this use is based on a loan agreement that can be revoked at any time.
10.2 Changes or modifications to services provided by Wiener Kaiser Wiesn GmbH, in particular their further development by the customer or by third parties acting on their behalf, are only permitted with the express consent of Wiener Kaiser Wiesn GmbH and – insofar as the services are protected by copyright – of the author.
10.3 The use of services from Wiener Kaiser Wiesn GmbH that go beyond the originally agreed purpose and scope of use requires the consent of Wiener Kaiser Wiesn GmbH - regardless of whether this service is protected by copyright. Wiener Kaiser Wiesn GmbH and the author are entitled to separate, appropriate compensation for this.
10.4 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 required after completion of the order, regardless of whether this service is protected by copyright or not.
10.5 For uses in accordance with paragraph 4, Wiener Kaiser Wiesn GmbH is entitled to the full remuneration agreed in the expired contract in the first year after the contract ends. In the second and third years after the contract ends, only half or a quarter of the remuneration agreed in the contract is due. From the fourth year after the contract ends, no further remuneration is payable.
10.6 The customer shall be liable to Wiener Kaiser Wiesn GmbH for any unlawful use in the amount of twice the appropriate fee for such use.

11. Labeling

11.1 Wiener Kaiser Wiesn GmbH is entitled to refer to Wiener Kaiser Wiesn GmbH and, if applicable, to the author on all advertising materials and in all advertising measures without the customer being entitled to any compensation for this.
11.2 Wiener Kaiser Wiesn GmbH is entitled, subject to the customer's written revocation at any time, to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website using the name and company logo (reference).

12. Warranty

12.1 The customer must report any defects immediately, in any case within eight days of delivery/performance by Wiener Kaiser Wiesn GmbH, and hidden defects within eight days of their discovery, in writing and with a description of the defect; otherwise the service is deemed to have been approved. In this case, the assertion of warranty and compensation claims as well as the right to challenge errors due to defects is excluded.
12.2 In the event of a justified and timely complaint of defects, the customer has the right to have the delivery/service improved or replaced by Wiener Kaiser Wiesn GmbH. Wiener Kaiser Wiesn GmbH will remedy the defects within a reasonable period of time, whereby the customer enables Wiener Kaiser Wiesn GmbH to take all measures necessary to examine and remedy the defects. Wiener Kaiser Wiesn GmbH is entitled to refuse to improve the service if this is impossible or involves disproportionate expenditure for WKW. In this case, the customer is entitled to the statutory rights of conversion or reduction. In the event of improvement, the customer is responsible for sending the defective (physical) item at his own expense.
12.3 It is the customer's responsibility to check the legality of the service provided, particularly in terms of competition, trademark, copyright and administrative law. Wiener Kaiser Wiesn GmbH is only obliged to carry out a rough check of legality. In the event of slight negligence or after fulfilling any obligation to warn the customer, Wiener Kaiser Wiesn GmbH is not liable for the legality of content if this was specified or approved by the customer.
12.4 The warranty period is six months from delivery/service. The right of recourse against WKW pursuant to Section 933b Paragraph 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption rule of Section 924 AGBG is excluded.

13. Liability and product liability

13.1 In cases of slight negligence, liability of WKW and its employees, contractors or other vicarious agents (“people”) for material or financial damage to 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, fault when concluding the contract, or due to defective or incomplete performance. The injured party must prove the existence of gross negligence. Insofar as the liability of Wiener Kaiser Wiesn GmbH is excluded or limited, this also applies to the personal liability of its “people”.
13.2 Any liability of WKW for claims made against the customer on the basis of the service provided by Wiener Kaiser Wiesn GmbH (e.g. advertising measure) is expressly excluded if Wiener Kaiser Wiesn GmbH has complied with its duty to provide information or if such a duty was not apparent to Wiener Kaiser Wiesn GmbH, whereby slight negligence does not constitute damage. In particular, Wiener Kaiser Wiesn GmbH is not liable for legal costs, the customer's own legal costs or the costs of publishing judgments, as well as for any claims for damages or other claims by third parties; the customer must indemnify and hold Wiener Kaiser Wiesn GmbH harmless in this regard.
13.3 The customer's claims for damages expire six months after knowledge of the damage; but in any case after three years from the infringement by Wiener Kaiser Wiesn GmbH. The amount of claims for damages is limited to the net order value.

14. Data Protection

Personal data of the customer (if the customer is a natural person) or personal data provided by the customer are processed exclusively on the basis of the legal provisions (GDPR, DSG).

For the purpose of contract processing with the customer, the following personal data is processed: name/company, profession, date of birth, contact person, business address and other addresses of the customer, telephone number, fax number, email address, company registration number, bank details, credit card details, VAT number. The processing of this personal data is necessary to fulfill the contract or to carry out pre-contractual measures (Article 6 Paragraph 1 Letter b of GDPR) and their provision is a prerequisite for the conclusion of the contract. Without this data, Wiener Kaiser Wiesn GmbH cannot conclude the contract.

This 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 processors that Wiener Kaiser Wiesn GmbH uses to fulfill the contract 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 termination of the contract with the customer, the data from the contractual relationship will be deleted if it is no longer required to fulfill the purpose of the processing and to defend against possible legal claims by the customer and provided that deletion does not conflict with statutory retention periods or other legal obligations.

The customer has the rights to information, correction, deletion, restriction, data portability, revocation and objection. If the customer believes that the processing of his data violates data protection law or that data protection claims have otherwise been violated, a complaint to the supervisory authority is possible. In Austria this is the data protection authority (www.dsb.gv.at).

For the purpose of indicating the existing or previous business relationship with the customer (reference), the following personal data is processed by Wiener Kaiser Wiesn GmbH 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 including references is carried out on the basis of Art. 6 Para. 1 lit. f GDPR, as WKW has a legitimate interest in processing this personal data in order to be able to advertise the services of Wiener Kaiser Wiesn GmbH to potential customers, to initiate business deals and to improve the range of services and the website. The customer also gives his express consent in accordance with Art. 6 Para. 1 lit. a GDPR to the processing of this personal data for the purpose of including references.

The person responsible for processing personal data is Wiener Kaiser Wiesn GmbH, Managing Director: Johann Pittermann, Windmühlgasse 26, 1060 Vienna

15. Applicable Law

The contract and all mutual rights and obligations as well as claims arising from it between Wiener Kaiser Wiesn GmbH and the customer are subject to Austrian substantive law, excluding its reference standards and excluding the UN Convention on Contracts for the International Sale of Goods.

16. Place of performance and jurisdiction

16.1 The place of performance is the registered office of Wiener Kaiser Wiesn GmbH. In the case of shipping, the risk is transferred to the customer as soon as Wiener Kaiser Wiesn GmbH has handed over the goods to the transport company of its choice.
16.2 The place of jurisdiction for all legal disputes arising between Wiener Kaiser Wiesn GmbH and the customer in connection with this contractual relationship shall be the court with jurisdiction over the registered office of Wiener Kaiser Wiesn GmbH. Notwithstanding this, Wiener Kaiser Wiesn GmbH is entitled to sue the customer at his or her general place of jurisdiction.
16.3 If in this contract references to natural persons are only given in the male form, they refer to women and men in the same way. When applying the term to specific natural persons, the gender-specific form must be used.