Die Ausgezeichneten – the awarded

Verlagshaus für ausgezeichnete Unternehmen GmbH

FN 442908k | LGZRS Graz | ATU 70013558

Am Arlandgrund 2 | 8045 Graz | Austria

Tel.: +43 (0) 316 69 69 99 – 801

office@the-awarded.eu / www.the-awarded.eu

 

1. Applicability; Conclusion of contract

1.1 Die Ausgezeichneten – the awarded Verlagshaus für ausgezeichnete Unternehmen GmbH (hereinafter " publishing house") shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between the Publishing house and the Customer, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, i.e. B2B transactions.

1.2 The version applicable at the time of conclusion of a contract shall be relevant. Deviations from these GTC and other supplementary agreements with the Customer shall only be effective if they have been confirmed by the Publishing house in writing.

1.3 Terms and conditions of the Customer, if any, shall not be accepted, even if the Publishing house knows them, unless expressly agreed otherwise in writing on a case-by-case basis. The Agency expressly objects to GTC of the Customer.  No other objection of the Publishing house to the Customer's GTC shall be required.

1.4 The Customer shall be informed about amendments to the GTC; they shall be deemed agreed unless the Customer objects to the amended GTC in writing within 14 days; in the information the Customer will be expressly informed about the consequence of silence on his part.

1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded on the basis of the same shall not be affected. The ineffective provision shall be replaced by an effective provision which comes as close as possible to the meaning and purpose of the ineffective one.

 

2. Contract conclusion

2.1. The basis for the conclusion of the contract is the respective offer of the publishing house. Offers from the publishing house are free and non-binding.

2.2. The contractual relationship between the customer and the publishing house is enforced by acceptance of the order by the publishing house in the form of an order confirmation to be sent. Acceptance of the offer must be made in writing by means of a written order confirmation.

2.3. There is no right to conclude a contract. The publishing house reserves the right to refuse a contract and to refuse applications without registration.

2.4 The Network Membership Agreement with its respective packages shall be concluded for a period of at least 24 months.

 

3. Scope of services; Order processing; Customer's duties to co-operate

3.1 The scope of the services to be rendered shall be based on the specifications of the Publishing house Agreement or the Publishing house's acknowledgment of order, if any Offer Documents. Subsequent modifications of the services shall be subject to the Publishing house's written confirmation. When executing the order the Publishing house shall be free in its discretion within the framework specified by the Customer.

3.2 All services of the Publishing house (including but not limited to all preliminary designs, sketches, final drawings, proofs, blueprints, copies, coloured prints and electronic files) shall be checked by the Customer and released within three working days of receipt by the Customer. If they are not released within that period, they shall be deemed approved by the Customer. After that period has expired with no reply from the Customer they shall be deemed accepted by the same.

3.3 The Customer shall make accessible to the Publishing house completely and in time all information and documents required for rendering the service. The Customer shall notify the Publishing house of all circumstances that are relevant to execution of the order, even if they become known only in the course of execution of the order. The Customer shall bear the costs incurred due to the fact that work has to be done again by the Publishing house or is delayed because of his incorrect, incomplete or subsequently modified specifications.

3.4 In addition, the Customer is obliged to clear the documents made available by him for execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the Customer, the Publishing house shall not be liable (at least as regards the relationship between the Publishing house and the Customer) for an infringement of such rights of third parties by documents made available by the Customer. If the Publishing house is held liable for an infringement of such rights, the Customer shall indemnify and hold harmless the Publishing house and shall compensate the Publishing house for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The Customer undertakes to support the Publishing house in defending claims of third parties, if any. For this purpose the Customer shall provide the Publishing house with all documents without request.

 

4. External services; Commissioning of third parties

4.1 The Publishing house shall be entitled at its own discretion to render the services itself, to employ expert third parties as agents [Erfüllungsgehilfen as defined by Section 1313a of the Austrian General Civil Code [AGBG]] and/or to commission a third party to render such services ("External Service").

4.2 Commissioning of third parties in connection with an External Service shall be done either in the Publishing house's own name or in the name of the Customer. The Publishing house shall select the relevant third party with care and ensure that it is appropriately qualified.

4.3 The Customer shall assume obligations vis-à-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the publishing house contract for cause.

 

5. Deadlines

5.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Publishing house in writing.

5.2 If the delivery/service of the Publishing house is delayed for reasons for which the Publishing house is not responsible, such as, e.g. events of force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays continue for more than two months, the Customer and the Publishing house shall be entitled to rescind the contract.

5.3 If the Publishing house is in default, the Customer may only rescind the contract after having granted the Publishing house a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the Customer for damages on the ground of non-performance or default shall be excluded, unless intent or gross negligence can be proved.

 

6. Early termination

6.1 The Publishing house shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where

(a) provision of a service becomes impossible for reasons for which the Customer is responsible or is further delayed even though the Customer was granted a grace period of 14 days;

(b) the Customer continues to violate material obligations under this contract, such as, e.g. the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days.

(c) legitimate concerns exist regarding the Customer's credit standing and, upon the Publishing house's request, the Customer fails to make advance payments or to furnish suitable security prior to provision of the service by the Publishing house;

6.2 The Customer shall be entitled to terminate the contract for cause without having to grant a grace period. A cause shall be, in particular, where the Publishing house repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.

 

7. Fees

7.1 Unless otherwise agreed the Publishing house's entitlement to fees shall arise for any specific service once the same has been rendered. The Publishing house shall be entitled to ask for advances to cover its expenses. The fees shall be stated in EURO and as net fees plus statutory value added tax.

7.2 All services of the Publishing house which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by the Publishing house shall be reimbursed by the Customer.

7.3 Cost estimates provided by the Publishing house shall be non-binding. If it becomes clear that the actual costs will exceed the Publishing house's written cost estimate by more than 15 per cent, the Publishing house shall advise the Customer of such higher costs. The increase in costs shall be deemed accepted by the Customer if the Customer does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the Customer from the beginning.

 

8. Payment; Retention of title

8.1 The fee shall be due for payment immediately upon receipt of the invoice without any deductions, unless special payment terms are agreed in writing on a case-by-case basis. The same shall apply to all cash and other expenses charged. The Publishing house shall retain title to the goods delivered by it until full payment of the fee including all ancillary liabilities.

8.2 In the case of payment default of the Customer statutory default interest at the rate applicable to business-to-business transactions will be charged. In the case of default the Customer also undertakes to reimburse the Publishing house the dunning and collection charges incurred to the extent they are necessary for appropriate pursuit of the claim. This shall in any case include the costs of two dunning letters at the market fee of currently at least EUR 20 per letter plus those of one dunning letter of a lawyer who has been instructed to collect the receivables outstanding. Assertion of further rights and claims shall remain unaffected.

8.3 If the Customer is in default of payment, the Publishing house may call for immediate payment of services or partial services rendered under different contracts concluded with the Customer.

8.4 Furthermore, the Publishing house is not obliged to render other services until payment of the amount outstanding (right to withhold services). The obligation to pay the fees shall not be affected.

8.5 If payment by instalments has been agreed, the Publishing house reserves the right to demand immediate payment of the total debt outstanding if instalments or ancillary claims are not paid in time (acceleration clause).

8.6 The Customer shall not be entitled to set off claims of the Publishing house against his own claims unless the Customer's claim has been recognised by the Publishing house in writing or ascertained by court.

 

9. Title and copyright

9.1 The Publishing house shall retain title to all services of the Publishing house, including services in connection with presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides), including parts thereof, as well as the individual workpieces and original designs and the Publishing house may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees the Customer shall acquire the right to use the services for the designated purpose agreed. Unless otherwise agreed the Customer shall, however, use the Publishing house's services exclusively in European Union. Acquisition of rights to use and exploit the Publishing house's services shall in any case be subject to full payment of the fees charged by the Publishing house for the same. If the Customer uses the Publishing house's services already prior to that time, such use shall be based on a loan relationship that may be revoked at any time.

9.2 Modifications and/or editing of services of the Publishing house, including but not limited to further development of the same by the Customer or third parties working for the Customer, shall only be permitted with the express consent of the Publishing house and, to the extent that services are protected by copyright, of the author.

9.3 The customer is permitted to use the word mark "The Awarded - Leading Innovators" exclusively for the period of the upright contractual relationship in the form of a network partnership. Network partners may use the trade mark on business papers, print-outs and statements, as well as their marketing documents, e.g. folders, flyers, websites. The use of the word mark "The Awarded - Leading Innovators" for the marking of goods and services is in any case inadmissible.

9.4 Use of the Publishing house's services beyond the originally agreed purpose and scope of use shall be subject to the Publishing house's consent irrespective of whether such service is protected by copyright or not. In consideration thereof, the Publishing house and the author shall be entitled to a separate reasonable fee.

9.5 After expiration of the Publishing house Agreement use of services of the Publishing house and/or advertising means for which the Publishing house developed concepts or designs shall also be subject to the Publishing house's consent irrespective of whether the service is protected by copyright or not.

9.6 The Customer shall be liable to the Publishing house for any unlawful use in the amount of twice the reasonable fees for such use.

 

10. Identification marks

10.1 The Publishing house shall be entitled to make reference to the Publishing house and the author, if applicable, on all advertising means and in any advertising and promotion measures, without the Customer being entitled to any payment in this respect.

10.2 The Publishing house shall be entitled to make reference to its current or former business relationship with the Customer on its own advertising media, including but not limited to its website, by referring to the Customer's business name and business logo, with the Customer having the right to revoke his consent in writing at any time.

 

11. Warranty

11.1 The Customer shall notify any defects immediately and in any case within eight days of delivery/provision of the service by the Publishing house and hidden defects not later than eight days after they were identified in writing including a description of the defect; otherwise the service shall be deemed accepted. In that case assertion of any warranty claims or claims for damages as well as the right to assert claims on account of mistake shall be excluded.

11.2 In the case of a justified and timely notification of defects the Customer shall be entitled to improvement or replacement of the delivery/service by the Publishing house. The Publishing house shall repair the defects within a reasonable period of time and the Customer shall enable the Publishing house to take all measures which are necessary for examination and repair of the defects. The Publishing house shall be entitled to refuse improvement of the service if such improvement is impossible or if the Publishing house were to incur disproportionately high costs. In that case the Customer shall be entitled to cancel the contract or get a fee reduction as provided for by law. In the case of improvement the Customer shall send the defective (physical) item at his cost.

11.3 The Customer shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. The Publishing house is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the Customer, if any, the Publishing house shall not be liable for lawfulness of contents if they were advised or accepted by the Customer.

11.4 The warranty period shall be six months as of delivery/service. The right of recourse to the Publishing house as defined in Section 933 b (1) AGBG shall be forfeited one year after delivery/service. The Customer shall not be entitled to withhold payments on the ground of complaints. The presumption rule [Vermutungsregel] of Section 924 AGBG shall be excluded.

 

12. Liability and product liability

12.1 In cases of slight negligence liability of the Publishing house and its employees, contractors or other agents [translator's note: Erfüllungsgehilfen as defined by Section 1313a AGBG] ("People") for damage to property or pecuniary loss suffered by the Customer shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that the Publishing house's liability is excluded or limited this shall also apply to personal liability of its People.

12.2 Any liability of the Publishing house for claims asserted vis-à-vis the Customer on the ground of services rendered by the Publishing house (e.g. advertising and promotion measures) shall be expressly excluded, provided that the Publishing house complied with its duty to inform or if it was unable to see such a duty, even due to slight negligence. The Publishing house shall in particular, not be liable for costs of legal proceedings, lawyer's fees of the Customer or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Customer shall indemnify and hold harmless the Publishing house in this respect.

 

13. Data protection (visual emphasis according to court rulings)

The Customer agrees that his personal data, namely name, occupation, date of birth, Business Register Number, powers to represent the company, contact person, business address and other addresses of the Customer, phone number, fax number, e-mail address, bank details, credit card details, VAT number) may be collected, stored and processed electronically for the purpose of performance of the contract and support of the Customer and for the Publishing house's own advertising and promotion purposes, for example by sending him offers, advertising brochures or newsletters (in hard copy or electronic form) and for the purpose of making reference to the current of former business relationship with the Customer. The Customer agrees to be sent electronic mail for advertising purposes until further notice.

Such consent may be revoked in writing via e-mail, fax or letter to the contact details stated in the header of these GTC at any time.

More detailed statements regarding Privacy Policy you’ll find on our Website www.the-awarded.com

 

14. Applicable law

The Agreement and all mutual rights and duties resulting therefrom as well as any claims between the Publishing house and the Customer shall be subject to Austrian substantive law, and its conflicts of laws rules and UN Sales Law shall be excluded.

 

15. Place of performance and place of jurisdiction

15.1 The place of performance shall be the registered office of the Publishing house. In the case that goods are shipped the risk shall pass to the Customer once the Publishing house has delivered the goods to the carrier chosen by it.

15.2 The agreed place of jurisdiction for all legal disputes arising between the Publishing house and Customer in connection with this contractual relationship shall be the court having jurisdiction over the subject-matter and the Publishing house's registered office. Notwithstanding the foregoing the Publishing house shall be entitled to sue the Customer at his general place of jurisdiction.

15.3 If only the masculine form is used herein for describing natural persons it shall equally refer to women and men. If a specific person is referred to, the respective gender-specific form shall be used.