General Terms and Conditions for Deliveries and Services of WEKA Industrie Medien GmbH
Status: May 2022
These General Terms and Conditions (hereinafter referred to as "GTC") apply to services provided by WEKA Industrie Medien GmbH (hereinafter referred to as "WEKA") in connection with the creation of advertising content for various forms of advertising (print, online and in the course of events) as well as for the implementation of advertising campaigns (Google Ads campaigns).
Conclusion of contract and validity of the GTC
1.1 These GTC apply to all contracts with clients concerning services provided by WEKA in connection with the creation of advertising content for various forms of advertising (print, online as well as in the course of events) as well as for the implementation of advertising campaigns (Google Ads campaigns).
1.2 Any terms and conditions of business or purchase of the customer shall not apply.
1.3 Contracts are concluded by acceptance of the offer submitted by WEKA to the customer. Acceptance is effected by confirmation by e-mail (to the e-mail address stated in the offer) within the acceptance period stated by WEKA. All offers transmitted by WEKA are subject to change, so that the acceptance of the offer by the customer can be rejected by WEKA without giving reasons. In this case, no contract/order is concluded.
1.4 The content of the contract corresponds to the content of the offer. Changes made by the customer to the offer shall only be deemed to have been accepted if these changes are confirmed in writing by WEKA.
Advertising content and media
2.1 In the event of the provision of content (texts, images, graphics, etc.) by the customer, WEKA is not obliged to check this content for its legal admissibility or suitability for advertising purposes.
2.2 The customer guarantees that he is entitled to all rights required for the processing and publication of the content provided, in particular the intellectual property rights required for this purpose, and will indemnify and hold WEKA harmless in the event of claims by third parties upon first request.
2.3 Should there be reasonable suspicion that the content is illegal or immoral or contrary to the legitimate interests of third parties, WEKA shall be entitled to remove the content immediately or to modify it accordingly. A notification to the customer or a prior warning is not required.
2.4 Advertisements in print and online media which are not recognisable as advertisements due to their editorial design may be marked as such by WEKA.
2.5 No guarantee is given for the inclusion of advertisements in specific issues or at specific times in online media. Placement requests are only binding in the event of the payment of a written placement surcharge, otherwise WEKA will endeavour to fulfil them without obligation.
2.6 The Client is responsible for the timely provision of content for the design of the advertising material. In the event of a delay in the provision of content, the order shall be deemed to have been fulfilled if the insertion is made using other advertising material provided by the Client (possibly within the framework of previous orders) or if only the name and address of the Client are published. In the event of a booking of forms of presence advertising at events as well as in the event of the provision of supplements and inserts to magazines, no substitute advertising material shall be produced in the event of a delay in the provision of content for the design of the advertising material; the Client shall nevertheless pay the fee in full.
2.7 In the design of advertising material by WEKA, colour deviations from the original are possible and do not entitle the client to assert claims.
2.8 The advertising materials provided by WEKA for the customer shall be deemed to have been released, provided that no change requests are made known within the period notified by WEKA. The advertising materials can be provided to the customer by e-mail for checking purposes.
Remuneration and payment, amendments to remuneration and contract
3.1 Invoices are payable upon receipt without deductions. Unless otherwise agreed, invoicing shall take place after publication of the Advertising Media. An exception to this is the monthly budget for ad placement via Google, which is invoiced monthly in advance and is due for payment immediately. The budget will only be used after receipt of payment.
3.2 All prices are exclusive of statutory taxes and duties (20% VAT, for print media additionally advertising tax).
3.3 In the event of default, interest on arrears in the amount of 12% p.a., as well as reminder and collection charges will be charged.
3.4 If payment of the invoice amount in instalments has been agreed, all outstanding instalments shall become due without any further grace period if only one instalment is not paid on time (loss of deadline).
3.5 The client may only offset claims recognised by WEKA or legally established claims.
3.6 All fees are also subject to change during an existing order. The prices may be increased in accordance with the development of the Consumer Price Index 2020 (base year 2020) published monthly by Statistics Austria or the index replacing it. The index figure calculated for the month of April 2022 shall serve as the reference value. In addition, the contractor has the option of making further price changes as well as general changes in the contractual conditions during an existing order. In this case, written notification (also possible by e-mail) shall be given to the Client three months before the planned date of change, up to which the Client shall be entitled to terminate free of charge. Such termination shall take effect on the planned date of change; until then, the contract shall continue to apply at the originally agreed conditions.
Warranty and compensation
4.1 WEKA must be notified in writing of any defects within the period notified by WEKA, in the absence of such a period at the latest within eight days of receipt of the specimen copy (print) and at the latest within two days of notification of online placement.
4.2 In the absence of timely written notification of defects, the service shall be deemed to have been accepted and approved and warranty claims by the customer shall be excluded.
4.3 The period for asserting warranty remedies, which shall be limited by mutual agreement to replacement and improvement, shall be six months from the date of provision of the advertising medium or provision of the service. If replacement or improvement of the defective advertising entry is not possible or feasible, the warranty remedies shall be limited to a corresponding reduction of the order value, provided that the defect results in a gross impairment of the advertising value.
4.4 Claims for damages must be made in writing within six months of provision of the advertising material or provision of the service, otherwise excluded. WEKA shall, however, only be liable for damages which WEKA can be proven to have caused intentionally or through gross negligence; liability for slight negligence is excluded. Liability for consequential damages, in particular for loss of profit, is also excluded. Furthermore, the amount of the claim for damages is limited to the amount of the order value for the defective advertising entry.
Licences and exploitation rights
Upon payment of the fee, WEKA transfers to the customer on a non-exclusive basis (no exclusivity) the right to use the works created by WEKA for the customer as agreed.
This right of use is expressly limited to the provision within the framework of the agreed form of advertising according to the offer as well as temporally to the duration of the provision described in the offer. Any further rights of use (distribution, reproduction, making available, etc.) of the works as well as the right of processing in general are expressly not transferred to the customer and shall remain with WEKA.
6.1 The place of performance for all services under this contract shall be Vienna.
6.2 Austrian law shall apply exclusively to legal disputes arising from this contract. The application of the UN Convention on Contracts for the International Sale of Goods, the reference norms of the IPRG and the Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation) is excluded.
6.3 The exclusive place of jurisdiction for legal disputes arising from this contract shall be the competent court for Vienna, first district of Vienna.
6.4 With the exception of the reservation of approval agreed in clause 3.6, amendments to these GTC must be made in writing in order to be effective. This shall also apply to any waiver of the written form requirement.
6.5 If individual provisions of these GTC are or become void, unenforceable and/or invalid, this shall not result in the voidness, unenforceability and/or invalidity of the entire GTC. In this case, the parties undertake to agree on a provision in place of the void, unenforceable and/or invalid provision which comes closest in economic terms to the purpose pursued by the void, unenforceable and/or invalid provision.