GTC of Katherine Jane Mary Roy
Dot the i is a trademark of Katherine Roy
1.1 Katherine Roy (hereinafter referred to as “Agency”) provides her services exclusively on the basis of the following General Terms and Conditions. These also apply to all future business relations, even if no express reference is made to them.
1.2 Deviations from these as well as other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.
1.3 Any of the client’s terms and conditions shall not be accepted, even if known, unless expressly agreed upon in writing per individual case. No objection to the client’s General Terms and Conditions by the Agency shall be required.
1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid one that comes as close as possible to its meaning and purpose.
1.5 The Agency’s offers are subject to change and non-binding.
- Conclusion of contract
2.1 The Agency’ respective offer or the Client’s order, in which the scope of services and the remuneration are set out, shall be the basis for the conclusion of the contract.
2.2 The contract shall be concluded by the Agency’s acceptance of the order, which may also invite the Client to submit an offer in advance. The acceptance shall be made in writin (e.g. by order confirmation), unless the Agency unequivocally indicates (e.g. by taking action on the basis of the order) that it accepts the order.
- Scope of services, order processing and the client’s cooperation duties
3.1 The scope of the services to be rendered shall be determined by the service description in the Agency agreement or any order confirmation by the Agency, as well as in any briefing protocol. Subsequent changes to the content of the service shall require written confirmation by the Agency. The Agency shall have freedom of production in the fulfilment of the order within the framework specified by the Client.
3.2 All services provided by the Agency shall be checked by the Client and approved within three working days of receipt by the Client. If they are not approved of in time, they shall be deemed to have been approved by the Client.
3.3 The Client shall make available to the Agency, in a timely and exhaustive manner, all information and documents required for the provision of the service. They shall inform the Agency of all circumstances that are of significance to the fulfilment of the order, even if these only become known during the fulfilment of the order. The Client shall bear the costs incurred if the Agency has to repeat or delay work as a result of incorrect, incomplete or subsequently changed information provided by the Client.
3.4 The Client shall also be obliged to check the documents made available for the execution of the order for any copyrights, trademark rights or other third-party rights. The Agency shall not be liable for any infringement of such rights. If a claim is made against the Agency due to such an infringement of rights, the Client shall indemnify and hold the Agency harmless; the Client shall compensate the Agency for all disadvantages incurred by the Agency due to a claim made by a third party.
- External services / commissioning of third parties
4.1 The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents in the performance of services that are the subject matter of the contract and/or to substitute such services (“third-party service”).
4.2 The commissioning of third parties within the framework of an external service shall be carried out either in the Agency’s own name or in the name of the Client, but in any case for the Client. The Agency shall carefully select this third party and ensure that it has the necessary professional qualifications.
4.3 The Client is responsible for obligations towards third parties that extend beyond the term of the contract. This shall also apply expressly in the event of termination of the Agency contract for good cause.
5.1 Unless expressly agreed upon as binding, stated delivery or service deadlines shall only be considered approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.
5.2 If the Agency is in default, the Customer may only withdraw from the contract after having set the Agency a grace period of at least 14 days in writing, which shall have expired to no avail. This period shall begin with the receipt of a reminder letter by the Agency. Claims for damages by the Client due to non-fulfilment or delay shall be excluded, except in the case of proof of intent or gross negligence.
5.3 If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as delays on the part of the Agency’s contractors, events of force majeure and other unforeseeable events that cannot be averted 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. The same applies if the customer is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information). In this case the agreed deadline shall be postponed at least to the extent of the delay.
- Early termination
6.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. A good cause shall be deemed to exist in particular if
- a) the performance of the service becomes impossible for reasons for which the Client is responsible, or is further delayed despite the granting of a grace period of 14 days;
- b) the customer continues to breach material obligations under this contract, such as payment of a due amount or duties to cooperate.
- c) there are justified doubts about the Client’s creditworthiness and the Client fails to make advance payments at the Agency’s request or to provide suitable security prior to the Agency’s performance;
- d) bankruptcy or composition proceedings are instituted against the Client’s assets or an application for the institution of such proceedings is rejected for lack of assets to cover costs, or if the Client ceases to make payments.
- Force majeure
If the project/order cannot be implemented or can only be implemented in part due to compelling or unforeseen events, such as force majeure, natural disasters, epidemics, war, strikes, terror, political events, massive failure or disruption of transport, supply and/or communication links or other important reasons, the risk in this respect shall lie exclusively with the Client. All accrued costs and work of the Agency and all accrued costs on the part of the suppliers shall be paid by the Client.
8.1 Unless otherwise agreed upon, the Agency’s fee claim shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses.
8.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, the Agency shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law in the amount customary in the market.
8.3 All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client, e.g. taxi fares, transport costs, travel expenses, costs for accommodation, etc. These shall be charged to the Client according to actual expenditure.
8.4 The Agency’s cost estimates shall not be binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the Agency by more than 15%, the Agency shall draw the Client’s attention to the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three days of such notification and at the same time discloses less expensive alternatives.
8.5 The Agency shall be entitled to appropriate remuneration for all Agency work that is not carried out by the Client for whatever reason. The offsetting provision of § 1168 AGBG shall be excluded. Upon payment of the remuneration, the Client shall not acquire any rights to work already performed; rather, concepts, drafts and other documents not executed shall be returned to the Agency without delay.
- Payment, retention of title
9.1 The Agency’s invoices shall be due for payment immediately upon receipt and without deduction, unless special payment terms have been agreed in writing for individual cases. This shall also apply to the charging of all cash expenses and other expenditures. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration takes place including all ancillary liabilities.
9.2 In the event of default in payment on the part of the Client, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the Client shall reimburse the Agency for any reminder and collection expenses incurred, insofar as these are necessary for appropriate legal prosecution.
9.3 In the event the Client default on their payment, the Agency shall be entitled to demand immediate payment for all services and partial services rendered under other contracts concluded with the Client. Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been settled. If payment in instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (forward loss).
9.4 The Client shall not be entitled to set off its own claims against the Agency’s claims, unless the Client’s claim has been recognised by the Agency in writing or established by a court of law. A right of retention on the part of the Client shall be excluded.
- Property rights and copyright
10.1 All services provided by the Agency, including individual parts thereof, shall remain the property of the Agency and may be reclaimed by the Agency at any time – in particular upon termination of the contractual relationship. By paying the fee, the Client shall acquire the right of use for the agreed purpose and to the agreed extent of use. In the absence of any agreement to the contrary, the customer may only use the agency’s services themselves, exclusively in Austria and only for the duration of the agency contract. The acquisition of rights of use and exploitation of Agency services shall in any case require full payment of the fees invoiced by the Agency for such services.
10.2 Changes or adaptations of the Agency’s services, such as their further development by the Client or by third parties working for the Client, shall only be permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author.
10.3 The Agency’s consent shall be required for the use of the Agency’s services that goes beyond the originally agreed purpose and scope of use – irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for this.
10.4 The Agency’s consent shall also be required for the use of the Agency’s services or advertising materials for which the Agency has prepared conceptual or design templates, after expiry of the Agency contract, irrespective of whether this service is protected by copyright or not.
10.5 For uses in accordance with para. 4, the Agency shall be entitled to the full Agency remuneration agreed in the expired contract in the 1st year after the end of the contract. In the 2nd or 3rd year after expiry of the contract only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration shall be payable.
10.6 The Client shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.
11.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising media and in all advertising measures, without the Client being entitled to any remuneration for this.
11.2 Subject to the Customer’s written revocation, which shall be possible at any time, the Agency shall be entitled to refer to the existing business relationship with the Customer by name and company logo on its own advertising media and in particular on its Internet website.
12.1 The Customer shall assert and substantiate any complaints in writing without delay, in any case within five days of delivery/service by the Agency; otherwise the service shall be deemed to have been approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
12.2 In the event of justified and timely notification of defects, the Client shall primarily only be entitled to the right to improvement or replacement of the service by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the Customer shall enable the Agency to take all measures necessary to examine and remedy the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high expenses for the Agency.
12.3 It shall be the Client’s responsibility to check the service for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency shall not be liable for the correctness of content if this has been specified or approved by the Client.
12.4 The warranty period shall be six months from performance. The right of recourse against the Agency pursuant to Section 933b (1) ABGB shall expire one year after performance. The Customer shall not be entitled to withhold payments due to defects. The presumption provision of § 924 AGBG shall be excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect shall be proven by the Client.
12.5 Claims for damages by the Client, in particular for delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential damage or tort, shall be excluded unless they are based on intent or gross negligence on the part of the Agency.
12.6 Any claim for damages may only be asserted within six months of knowledge of the damage.
12.7 Claims for damages shall be limited in amount to the order value excluding taxes.
13.1 The Agency shall carry out the work assigned to it in compliance with the generally recognised principles of law and shall inform the Client in good time of any risks discernible to it. Any liability on the part of the Agency for claims made against the Client on the basis of the advertising measure (the use of a trademark) is expressly excluded; the Agency shall have no obligation to provide information in this respect. The legal review of the advertising measures offered or carried out (including the possible necessity of obtaining official permits) shall rather be carried out by the customer and the agreed fee shall be paid to the agency, even if the advertising measure is prohibited. The customer shall ensure compliance with all necessary legal provisions. The Agency shall also not be liable for legal costs, the Client’s own lawyer’s fees or the costs of publishing judgements, or for any claims for damages or other claims by third parties.
13.2 The Agency shall only be liable for damage within the framework of the statutory provisions if it can be proven to have acted with intent or gross negligence. Liability for slight negligence shall be excluded. The existence of gross negligence shall be proven by the injured party.
- Data protection
The Client expressly agrees that the Agency may automatically determine, store and process the data disclosed by the Client (name, address, e-mail, credit card data, data for account transfer) for the purpose of fulfilling the contract and supporting the Client as well as for its own advertising purposes. The client agrees that electronic mail may be sent to him/her for advertising purposes until revoked. This consent can be revoked at any time at [email protected]. The revocation shall not affect the lawfulness of the processing carried out up to that point.
- Applicable law
The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the Customer shall be governed by Austrian substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- Place of performance and jurisdiction
16.1 The place of performance shall be the Agency’s registered office. In the case of shipment, the risk shall pass to the Customer as soon as the Agency has handed over the goods to the carrier chosen by it.
16.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the Austrian court with subject-matter jurisdiction for the Agency’s registered office. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at his general place of jurisdiction.