1. General / Scope
These general terms and conditions apply exclusively to all transactions (special terms and conditions apply to so-called agency contracts) between the customer and svarmony Technologies GmbH, Ungargasse 64-66, Top 504, 1030 Vienna, Austria (hereinafter svarmony).
Conflicting terms and conditions of the customer are only effective if they are explicitly recognized in writing by svarmony. Any agreement deviating from or supplementing these General Terms and Conditions must be made in writing.
Should individual provisions of these terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision must be replaced by an effective one that comes closest to it in terms of purpose. Subsidiary agreements are only binding if they have been confirmed in writing by post or email. Verbal statements are generally non-binding.
2. Conclusion of contract
The offers of svarmony are subject to change.
Orders of the customer are only considered accepted by svarmonys written order confirmation, unless svarmony indicates, for example by taking action based on the order, that it accepts the order.
3. Service and fee
Unless otherwise agreed, svarmonys fee entitlement begins for each individual service as soon as it has been rendered. svarmony is entitled to request advances to cover its expenses. All services of svarmony that are not expressly covered by the closed order are to be agreed and paid separately. This applies particularly to all ancillary services provided by svarmony
All of the svarmony cash expenses that go beyond normal business operations (e.g. courier services, extraordinary shipping costs, etc.) must be refunded by the customer.
Cost estimates of svarmony are generally non-binding. If it can be foreseen that the actual costs will exceed those estimated by svarmony in writing by more than 20 percent, svarmony will notify the customer of the higher costs in writing.
The cost exceeding is considered approved by the customer if the customer does not object in writing within three days of this notice and at the same time announces cheaper alternatives.
All svarmony work that is not carried out for reasons that lie with the customer will be invoiced in accordance with the contract. By paying this remuneration, the customer does not acquire any rights in this work; concepts, drafts etc. that have not been carried out must rather be returned to svarmony immediately
4. Third party services
svarmony is also entitled to transfer the external services required to fulfill the order to third parties. Insofar as contracts for external services are concluded with third parties in individual cases, the client is obliged to release svarmony internally from all liabilities on first requests resulting from the conclusion of the contract with the third party, in particular from the obligation to pay the price for the external service.
svarmony is entitled to a reasonable fee for carrying out the presentations requested by the customer, which at least covers the entire personnel, material and external expenditure for svarmony for the presentation.
If svarmony does not receive an order after the presentation, all svarmony services, in particular the presentation documents and their content, remain the property of svarmony the customer is not entitled to continue to use them – in whatever form. Rather, the documents must be returned to svarmony immediately.
If the ideas and concepts introduced in the course of a presentation for the solution of communication tasks are not used in advertising media or other products designed by svarmony, the agency is entitled to use the presented ideas and concepts for other purposes.
The forwarding of presentation documents to third parties, their publication, duplication or other distribution is not permitted without the express consent of svarmony.
6. Property right and copyright protection
All services of svarmony including those from presentations (e.g. suggestions, ideas, sketches, preliminary designs, scripts, final drawings, concepts, negatives, slides, electronically stored photos, offers etc.), but also individual parts thereof, remain as well as individual workpieces and design originals owned by svarmony and can be requested back from svarmony at any time.
By paying the fee, the customer only acquires the right of use (including reproduction) for the agreed purpose and within the agreed scope of use. Changes to the services of svarmony by the customer are only permitted with the express consent of svarmony and – insofar as these services are protected by copyright – the author. For the use of the services of svarmony, which goes beyond the originally agreed purpose and scope of use, it is – regardless of whether this service is protected by copyright – the approval of svarmony is required.
The svarmonyand, if applicable, the author are entitled to a separate, reasonable remuneration; the fee stipulated in the order for the service is generally appropriate. The copyrights to the services provided by svarmony are non-transferable and are in any case with svarmony.
svarmony is entitled to refer to svarmony and, if necessary, the author on all advertising materials and advertising measures, without the customer being entitled to a compensation.
All services of svarmony (especially all preliminary designs, sketches, final drawings, prints, texts, etc.) must be checked by the customer and released in writing within three days. If approval is not given in time, the work submitted by svarmony is considered to be approved by the customer. In particular, the customer will check the legal, especially the competition and trademark lawfulness of the svarmony service. The svarmony only initiates an external legal check upon the customer’s written request. The customer has to bear the associated costs.
svarmony strives to meet the agreed dates. Failure to meet the deadlines only entitles the customer to assert his statutory rights if he has granted svarmony a grace period of at least 14 days. This period begins with the receipt of a warning letter to svarmony.
Evidently inevitable or unpredictable events, in particular delays at or through the contractors of svarmony, release svarmony from compliance with the agreed delivery date. svarmony must immediately inform the customer of these events.
10. Payments, retention of title
The svarmony invoices are due without any deductions from the invoice date, unless otherwise agreed. In the event of late payment, the statutory default interest applies.
Delivered goods remain the property of svarmony until full payment has been made. The customer may only offset undisputed or legally established claims or exercise a right of retention.
11. Warranty and compensation
svarmony guarantees that the service to be provided is in accordance with the contract and does not have any defects that cancel or reduce its value or suitability for the use or normal use required by the contract.
The customer must assert and justify any defects at the latest within five working days after the service has been provided. svarmony provides the guarantee by reworking or delivering an error-free service. If the alleged defect cannot be remedied within a period of 10 days, the customer can assert the rights according to the law or, after the fruitless expiry of a reasonable period of time set in writing by svarmony for the remedy of the defect, remedial action by another contractor or own employees at the expense of svarmony.
Claims for damages by the customer, in particular due to delay, impossibility of performance, positive breach of claim, fault upon conclusion of the contract, defective or incomplete performance, consequential damage or unlawful acts are excluded, unless they are based on intent or gross negligence on the part of svarmony.
To the extent permitted by law, the agency is only liable for intent and gross negligence.
svarmony will carry out the work assigned to it in compliance with its own professional and commercial duty of care and will notify the customer in good time of any significant risks that are recognizable to them. However, the customer is responsible for compliance with the legal, in particular competition law, regulations, including the advertising measures proposed by isvarmony.
13. Mediation of storage space and web hosting
As far as the mediation of storage space and web hosting is concerned, the general terms and conditions of the respective webhoster/provider apply additionally.
When providing data on servers, svarmony acts only as an intermediary between the client and the web hosting organizations. svarmony has no influence on the provision of data on servers and therefore does not guarantee that the client’s data is free of third party rights or that it will last in the long run.
The client herewith indemnifies svarmony from claims for damages of third parties based on inaccessible server data on first request.
14. Jurisdiction – Applicable law
The legal relationship between the customer and svarmony is exclusively subject to Austrian law.
The law of the Republic of Austria shall apply with the exception of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Convention on Contracts for the International Sale of Goods).
15. Place of performance, place of jurisdiction
The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with a contract concluded between them is – as far as legally permissible – the headquarters of svarmony in Vienna.