General Terms and Conditions of Artciety GmbH (hereinafter the "GTC")
as of September 2021
1.1. Artciety GmbH, a company with limited liability registered in the commercial register of the Vienna Commercial Court under FN 560731f with its seat in Vienna ("Artciety"), provides all services to customers (the "customers" or individually the "customer" and each customer together with Artciety the "contracting parties"), on the basis of these terms and conditions, in the version valid at the time of the conclusion of the contract.
1.2. These terms and conditions are binding for all current and future business dealings with Artciety, even if they are not expressly referred to repeatedly. Artciety expressly rejects deviating general terms and conditions of the customer. Deviations from these terms and conditions, supplementary agreements, or any conflicting terms and conditions of the customer are only effective if they are confirmed in writing by Artciety.
1.3. The provisions of these Terms and Conditions can be changed by Artciety at any time, with such changes being announced at least 30 days before they come into effect on the website www.artciety.com and by email (to the last email address provided by the customer). At the same time, Artciety informs the customer of the point in time when the changes come into effect and that he is entitled to terminate the contract up to this point in time (the changes come into effect) ("special right of termination"). If the customer makes use of this special right of termination, the services already provided by Artciety and the costs incurred are to be paid in full by the customer. If the customer does not make use of his special right of termination, the announced changes are deemed to have been accepted.
2. Conclusion of Contract, Subject Matter
2.1. The customer receives a written offer (the "Offer") from Artciety, in which the specific order is defined according to the type, scope, and cost of the services provided by Artciety. Artciety's offers are non-binding unless they are expressly designated as binding. The contractual relationship between the contracting parties (the "order") only comes into effect when the order is confirmed by Artciety. Subsequent changes to order require written confirmation by Artciety.
2.2. The scope of the services to be provided by Artciety results from the information in the order. Artciety has freedom of design when fulfilling the order within the framework specified by the customer.
2.3. Unless expressly agreed as binding, the specified service periods are only approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by Artciety.
2.4. If Artciety is in default with the fulfillment of an order, the customer can withdraw from the order after he has given Artciety a reasonable grace period of at least 14 days in writing and this has elapsed unsuccessfully.
2.5. Force majeure, labor disputes, natural disasters as well as other circumstances that are beyond Artciety's control or reasons for which Artciety is not responsible and which delay the fulfillment of an order, Artciety is not responsible under any circumstances or allows Artciety to redefine the original performance period agreed in the order.
3. Order Processing and Obligations to Cooperate
3.1. Artciety is entitled at its own discretion to commission qualified third parties as subcontractors to carry out an order. Artciety is liable to the customer for the behavior of subcontractors commissioned by Artciety as it is for its own. If the commissioning of third parties is required at the customer's request, this is done in the name and for the account of the customer and such third parties are not vicarious agents of Artciety.
3.2. The customer undertakes to make all information and documents available to Artciety in a timely and complete manner, which are necessary for the fulfillment of the order. The customer must inform Artciety in a timely and continuous manner of all circumstances that are important for the execution of the order. If due to incorrect, incomplete, or missing information, an order performance or delay occurs that is not in accordance with the order, the customer bears the costs that arise as a result and has to compensate Artciety for any pecuniary loss incurred as a result.
3.3. It is the responsibility of the customer to check the information provided for the execution of the order for correctness and the documents provided for any copyrights, trademark rights, or other rights of third parties. Artciety is not obliged to check this. If Artciety is called upon because of such a violation of the law, the customer indemnifies and indemnifies Artciety.
3.4. The customer grants Artciety the free, non-exclusive right, limited for the fulfillment of the order, to use all content submitted by him for the creation of the order, such as photos of the customer, to the extent necessary for the fulfillment of the order.
4. Remuneration and Terms of Payment
4.1. The fee is based on the prices agreed in the order. All prices are exclusive of statutory sales tax.
4.2. Artciety reserves the right to request a deposit of up to 50% of the total order value in advance after confirmation of the order, whereby the implementation of the order will only begin after receipt of this deposit. After completing the order, the remaining part of the total order value must be paid.
4.3. All services by Artciety within the scope of an order that is not expressly compensated for by the agreed fee will be remunerated separately. All cash expenses, expenses, travel expenses, etc. that arise in the course of fulfilling the order are to be reimbursed to Artciety by the customer against invoicing.
4.4. In the absence of a deviating written agreement, the fee is due for payment within 7 days of receipt of the invoice and without any deductions. The customer is not entitled to set-off counterclaims against claims from Artciety, unless such counterclaims have been determined by a court or recognized by Artciety in writing.
5. Default in Payment by The Customer
5.1. In the event of default in payment by the customer, Artciety is entitled to charge default interest of 9.2% pa above the base rate last announced by the European Central Bank from the respective due date.
5.2. Furthermore, in the event of default in payment, the customer undertakes to reimburse Artciety for the reminder and collection charges, insofar as they are necessary for appropriate legal prosecution. The assertion of further rights and claims remains unaffected.
5.3. In the event of default in payment by the customer, Artciety is entitled to make all services and partial services already provided for the customer due. In addition, Artciety is no longer obliged to provide further services until the outstanding amount has been paid.
6. Resignation by Artciety
6.1. Artciety is entitled to withdraw from an order with immediate effect if there is an important reason. Such an important reason exists in particular, but not exclusively, if (a) the execution of an order is impossible for reasons for which the customer is responsible, or is further delayed despite a written warning and a grace period of 14 days; (b) there are legitimate concerns about the creditworthiness of the customer for whom bankruptcy proceedings have not been opened and who, at the request of Artciety, is not prepared to make advance payments or to provide suitable security; (c) bankruptcy or insolvency proceedings are opened against the customer's assets or an application to open such proceedings is rejected due to a lack of cost-covering assets and Artciety was not yet aware of this at the start of the contract; should such a circumstance exist, the customer must inform Artciety of this without being asked before the conclusion of the contract; (d) Artciety the execution of an order is impossible or unreasonable for other reasons for which the customer is responsible.
6.2. In the event of a justified withdrawal from the contract, Artciety retains the right to the entire agreed fee.
7. Cancellation by The Customer
7.1. Withdrawal for good cause Without prejudice to the statutory right of withdrawal for consumers in accordance with point
7.2 the customer is entitled at any time to withdraw from an order for an important reason. Such an important reason exists in particular if the maintenance of the contract is no longer reasonable for him because Artciety continues to violate essential provisions of the order, despite a written warning and setting a grace period of 14 days for reparation. In the event of a withdrawal for an important reason - regardless of the cancellation conditions in accordance with point 8 - the following provisions regarding the agreed fee apply:
In the case of a justified withdrawal, the customer has to pay the agreed fee on a pro-rata basis (ie. For the services already provided by Artciety up to the time of withdrawal) and to reimburse the costs and cash outlays that have accrued up to that point.
In the event of an unjustified withdrawal by the customer, Artciety retains the full claim to the entire agreed fee as well as the costs and cash expenses accrued up to that point, regardless of the time of withdrawal. 7.2. Right of withdrawal of the consumer If the customer is a consumer within the meaning of the Consumer Protection Act (KSchG), the Distance and Outbound Business Act (FAGG) applies to a distance contract or a contract concluded outside of business premises. A consumer can withdraw from such contracts within 14 days without giving reasons. Section 11 (2) FAGG is decisive for the start of the withdrawal period. In the event that a consumer withdraws for an important reason - regardless of the cancellation conditions in accordance with point 8 - the following provisions apply with regard to the agreed fee:
If the customer withdraws from a contract for services, he only has to pay the agreed fee on a pro-rata basis (i.e. for the services already provided by Artciety up to the time of withdrawal) after he has requested that the service be performed during the withdrawal period should be started.
If the customer withdraws from a contract for the delivery of digital content that is not stored on a physical data carrier, he is not obliged to pay for services already provided by Artciety. The customer has no right of withdrawal for distance sales contracts or contracts concluded outside of business premises for • services if Artciety - on the basis of an express request by the customer and confirmation of the customer's knowledge of the loss of the right of withdrawal in the event of complete fulfillment of the contract - before the end of the withdrawal period with the Execution of the service has started) and the service has then been fully performed,
the delivery of digital content not stored on a physical data carrier, if Artciety - with the express consent of the customer, combined with his knowledge of the loss of the right to withdraw from the contract if the contract begins early, and after a copy or confirmation has been made available - before the withdrawal period has expired has started with the delivery (Section 18 Paragraph 1 Item 11 FAGG).
8. Cancellation Conditions
8.1. If Artciety has been commissioned to organize and/or host an event (concerts and other cultural events, conferences, etc.) and the customer decides to cancel the event, the following cancellation conditions apply: Any cancellation by the customer must be made in writing. Depending on the time of cancellation, the following fee will be charged:
Cancellations up to 4 months before the start of the event: no fee
Cancellations up to 2 months before the start of the event: 25% of the agreed fee
Cancellations up to 5 weeks before the start of the event 50% of the agreed fee
Cancellations less than 5 weeks before the start of the event: 100% of the agreed fee. Irrespective of the time of cancellation, Artciety is also entitled to demand reimbursement from the customer for all costs and cash outlays that have already been incurred up to this point in time upon presentation of appropriate receipts.
8.2. The cancellation conditions according to point 8.1 do not apply to courses, workshops, training, seminars, webinars, etc. offered by Artciety. Artciety reserves the right to cancel such events no later than 7 days before the scheduled date without giving reasons, in the event of force majeure or for other unavoidable reasons (e.g. if the required minimum number for events, training or courses is not reached; if speakers / Trainers are prevented for health reasons; if the holding of an event is officially prohibited), also at short notice. In this case, fees already paid will be reimbursed. A further claim for damages is excluded.
9. Copyright and Right of Use
9.1. Artciety grants the customer a non-exclusive license for the works that were created by Artciety as part of an order (the "commissioned work") for a period of 2 weeks before the start and 2 weeks after delivery (the "duration of use") the agreed purpose and scope of use. If no agreements have been made about the specific purpose and scope of use of the commissioned work, the minimum scope required for the use of the work shall apply. Any other use and/or exploitation of the commissioned work requires Artciety's written consent for payment.
9.2. The customer only acquires the right of use in accordance with point 9.1 after full payment of the total fee plus any ancillary costs.
9.3. The ownership of the commissioned work including the content (photos, graphics, etc.) and branding elements (logos, claims, campaigns, etc.) created by Artciety remains with Artciety, with the exception of the content mentioned in Section 3.4 of these GTC. Any change, processing, or imitation of the commissioned work or the use of the commissioned work after the end of the agreed period of use requires the written consent of Artciety, which is subject to payment.
9.4. The rights granted to the customer may only be transferred to third parties or passed on as a sub-license with the express prior written consent of Artciety. Artciety reserves the right to pay a separate fee for granting such consent.
9.5. The customer is liable to Artciety for any unlawful use in double the amount of the appropriate fee for this use.
10. Attribution, Reference
10.1. According to Section 20 of the Copyright Act (UrhG), Artciety is entitled to affix its company name or a logo on every commissioned work, as well as on every advertising material for it, or every publication about it. The form and duration of the labeling can be agreed upon in individual cases.
10.2. Artciety is entitled to name the customer as a reference and to use all (protected or unprotected) trademarks, logos, and marks of the customer in all media for its own advertising purposes.
11.1. If the customer is an entrepreneur, it is up to him to notify any defects in the service immediately after receipt of the commissioned work, at the latest within 7 days after detection of the same, in writing with a description of the defect, otherwise the service is considered approved and accepted, which means that the assertion can be made warranty claims and claims for damages as well as the right to contest errors due to defects are excluded. The presumption regulation of § 924 General Civil Code (ABGB) is excluded.
11.2. In the event of a justified and timely notification of defects, the customer primarily has the right to improve the service. Artciety will remedy the defects within a reasonable period of time, whereby the customer is obliged to enable all measures necessary to investigate and remedy the defect. If Artciety culpably fails to improve within a reasonable grace period, the customer is entitled to a proportionate price reduction. Costs that arise when third parties are used despite Artciety's willingness to remedy defects are borne by the customer.
11.3. Artciety is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for Artciety. In this case, the customer is entitled to statutory conversion or reduction rights.
11.4. Artciety makes its commissioned work available for use 24 hours a day, 7 days a week during the granted period of use. According to the current state of the art, there is no method that can guarantee that software is free from errors. As a result, Artciety cannot guarantee continuous, error-free operation and permanent usability of the commissioned work and the software on which it is based during the granted period of use. In addition, there may be temporary disruptions in accessibility as part of maintenance work. Artciety will notify the customer of scheduled maintenance work in good time, but at least 3 working days in advance, by email.
12.1. As far as legally permissible, Artciety is only liable, for whatever legal reason, if the damage was caused by Artciety through gross negligence or intent. Artciety's liability for slight negligence is excluded to the extent permitted by law.
12.2. Artciety's liability is, in any case, limited to the amount of the respective order value.
12.3. Artciety is not liable for indirect damage, lost profit, loss of interest, lack of savings, consequential and financial damage, or damage from claims by third parties.
12.4. Likewise, no liability can be assumed for system failures, disruptions, data loss, and viruses, for example as a result of external attacks or for other reasons, unless such damage is caused by Artciety intentionally or through gross negligence.
12.5. Artciety does not vouch for the correctness of content if it has been specified or approved by the customer.
12.6. Claims for damages by the customer expire six months after knowledge of the damage and the damaging party, but no later than two years after Artciety's behavior giving rise to liability.
13. Applicable Law, Place of Jurisdiction, Place of Performance
13.1. For all disputes arising from or in connection with these terms and conditions or all legal relationships between Artciety and its customers, Austrian law applies exclusively to the exclusion of the UN Sales Convention and the reference norms of international private law.
13.2. For all disputes arising from or in connection with these terms and conditions or all legal relationships between Artciety and its customers, the contracting parties agree that the competent court in Vienna shall have exclusive jurisdiction.
13.3. The place of performance for Artciety's deliveries and services is Vienna.
14. Final Provisions
14.1. Each contracting party bears the taxes, duties, or fees arising for it from the contractual relationship itself. Any legal transaction fees are to be borne by the customer.
14.2. Changes, additions, and side agreements to these terms and conditions must be made in writing to be effective. This also applies to the agreement to abandon this formal requirement. In the event of contradictions between these terms and conditions and deviating written agreements between the contracting parties, the provisions of the deviating agreements take precedence.
14.3. Should individual provisions of these terms and conditions be or become invalid, this shall not affect the remaining content of the terms and conditions. The ineffective provision is to be replaced by an effective provision that is legally valid and economically closest to the will of the contracting parties.
14.4. A "third party" in the sense of these terms and conditions is any natural or legal person who is different from the contracting parties in the legal sense, even if legal and/or economic relationships should exist with such a person.