General Terms and Conditions
General Terms and Conditions, Wollzelle GmbH
Last Revised: 16 November 2016
1.1. The present General Terms and Conditions apply exclusively to all services and products supplied by Wollzelle GmbH (hereinafter referred to simply as “Wollzelle”). Even if not expressly referred to in each individual case, these General Terms and Conditions shall also apply to all future services and products supplied by Wollzelle to the Client.
1.2. The Client’s own General Terms and Conditions or General Conditions of Purchase shall only be applicable and valid to the extent expressly agreed in writing.
1.3. These General Terms and Conditions are intended primarily for transactions between Wollzelle and corporate clients. In the exceptional event that the Client should be a consumer as defined in § 1 of the Austrian Consumer Protection Act (“Konsumentenschutzgesetz”; as amended), these General Terms and Conditions shall apply only to the extent that they do not conflict with any mandatory provisions of said Consumer Protection Act.
2. Contract, Quotations
2.1. Any quotations provided by Wollzelle are subject to change and not binding and may be amended by Wollzelle, in particular with regard to the scope and pricing of the work, at any time prior to the entering into of a valid contract.
2.2. A contract will only be deemed to have been entered into upon issue of a written order confirmation by Wollzelle to the Client. The content of this order confirmation is decisive and authoritative. In exceptional cases, a contract may also be deemed to have been entered into upon commencement of work by Wollzelle on an order received from the Client.
3. Scope, Fulfillment of Order, Client Obligation to Cooperate
3.1. The scope of the work is determined by the order confirmation or the contract signed between the Parties. In the event that no such order confirmation is issued or written contract signed, the scope of the work shall be determined by the order placed by the Client. Any subsequent changes to the scope of the work must be made and confirmed in writing.
3.2. Any work (including, but not restricted to, design concepts, initial drafts, sketches, final drawings, proofs and color print-outs as well as web mock-ups, design, navigation and interaction concepts) presented to the Client for release shall be deemed to have been approved if no rejection or request for modification of the work is received from the Client within a period of three (3) working-days.
3.3. The Client agrees to provide Wollzelle prior to and during the provision of services by Wollzelle to the Client with prompt access to any and all information and documents necessary or otherwise relevant to the completion of the work. The Client further agrees to bear the cost of any additional work incurred by Wollzelle as a result of any incomplete, incorrect or subsequently amended information provided by the Client to Wollzelle.
3.4 Should the services provided by Wollzelle involve the programming of software, web pages or web applications, or should these services include software components developed by Wollzelle, the client – unless otherwise expressly agreed – shall have no claim to receipt of the source code.
4. Use of External / Third Party Services
4.1. Wollzelle is entitled at its own discretion to either carry out the work itself, make use of third party contractors in the rendering of the contractually agreed work and/or substitute such work (“other auxiliaries”).
4.2. The commissioning of other auxiliaries can be carried out either in Wollzelle’s name or in the name of the Client. In all cases, the costs for such other auxiliaries will be charged to the Client.
4.3. Wollzelle undertakes to select any other auxiliaries with due care and ensure they have the qualifications necessary to carry out the work.
5. Delivery Dates, Deadlines
5.1. Any deadlines and delivery dates shall only be effective if they are made in writing and confirmed in writing by Wollzelle. In the event of a delay by Wollzelle, the Client shall accord Wollzelle a commensurate period of grace of at least 14 days starting from the date of receipt of corresponding written notification to Wollzelle from the Client. Any legal consequences of a delay shall only commence upon inefficacious lapse of said period of grace, whereby any claims for damages against Wollzelle shall only be permissible in the case of proven willful intent or gross negligence on the part of Wollzelle.
5.2. Inevitable or unforeseeable events – in particular delays by Wollzelle’s contractors – release Wollzelle from observance of the agreed delivery dates. This also applies to any delays on the part of the Client in the fulfillment of its contractual obligations (e.g. the provision of documentation or information). In such cases, the agreed delivery dates will be rescheduled to reflect the duration of the delay with the addition of a commensurate period to accommodate any changes to Wollzelle’s schedule that should become necessary as a result of the delay (e.g. the bringing forward of other projects).
6. Withdrawal from Contract
Wollzelle shall be entitled to withdraw from the contract in particular if
a) the work cannot be rendered for reasons attributable to the Client or continues to be delayed despite the accordance of an agreed period of grace;
b) legitimate concerns exist regarding the creditworthiness of the Client, and the Client neither makes the requested advance payments nor provides suitable security prior to the commencement of work by Wollzelle;
c) the Client is in default of payment for other orders with Wollzelle.
7.1. Wollzelle’s fees are based in principle on the amounts agreed in advance with the Client. In the absence of such agreement, Wollzelle will invoice the Client for any work rendered at an hourly rate of EUR 220 per hour for managing director hours or EUR 140 per hour for other Wollzelle employee hours. These rates are exclusive of any cash outlays, costs of third party services or VAT.
7.2. Unless otherwise expressly agreed, any price quotations provided by Wollzelle are non binding. Should it become evident that the actual costs will exceed the estimated costs by more than 20 %, Wollzelle will notify the Client of the increased costs. If the Client does not object to this increase in writing and propose cheaper alternatives within three days of receipt of such notification, the increased costs will be deemed to have been accepted by the Client.
8. Payment Terms
8.1. All invoices issued by Wollzelle are due and payable net cash without deduction from the date of issue and, unless otherwise agreed, shall be settled in full within 14 calendar days from receipt of invoice. In case of late payment, interest shall be charged at a rate of 8 % above the current base rate, but no less than 12 % p.a. All delivered goods remain the property of Wollzelle until payment is received in full.
8.2. The Client shall further be liable for all costs and expenses incurred in the collection of any outstanding amounts, including, but not limited to, any collection fees or other necessary costs associated with an adequate assertion of Wollzelle’s legal rights, in particular any legal representation costs.
8.3. In the case of late payment, Wollzelle reserves the right to make immediately due and payable all work carried out and partially carried out under other contracts with the Client.
8.4 If Wollzelle invoices a client a regular fee for regular, ongoing services, and should the client follow into arrears, Wollzelle reserves the right to cease provision of these services (including taking any web-based services offline) upon issue of a corresponding reminder and payment extension of at least 30 days giving notice of the consequences of non-payment. Wollzelle will not recommence the services until the amount due is paid in full by the client.
9.1. Wollzelle is entitled to a commensurate fee for any presentations made to the Client. If no specific fee is agreed in advance, the amount of said fee shall at least cover all personnel and material costs incurred by Wollzelle as a result of the presentation as well as the cost of all third party services.
9.2. In the event that the Client does not place an order with Wollzelle following a presentation, all work carried out by Wollzelle, in particular any presentation materials and their content, shall remain the property of Wollzelle. The Client is not authorized to continue using said materials – in any form – and shall return them to Wollzelle forthwith. The making available of such presentation materials to any third parties as well as their publication, duplication, distribution or utilization in any other form is not permitted without the express written consent of Wollzelle.
9.3. Further, the Client is not authorized to continue using the ideas and concepts made known in the course of the presentation, regardless of whether said ideas and concepts are or become copyrighted. The payment of the presentation fee does not entitle the Client to any usage and exploitation rights whatsoever regarding the presented material and/or work.
9.4. In the event that the Client does not place an order with Wollzelle following a presentation, Wollzelle reserves the right to re-use the presented ideas and concepts.
10. Industrial property rights and copyrights
10.1. All work carried out by Wollzelle, including but not limited to any work carried out in the course of any presentations (e.g. proposals, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, website concepts and web applications) and any individual parts thereof, as well as any individual components and original designs, shall remain the property of Wollzelle. Wollzelle reserves the right to demand the return of said work at any time, in particular upon termination and/or completion of the contract. Upon full payment of the agreed fee, the Client acquires the right to use (and reproduce) said work for the agreed purpose, in the agreed scope and for the agreed duration. In the absence of any agreement to the contrary, the Client is only entitled to use Wollzelle’s work itself, in Austria and for the duration of the contract between the Client and Wollzelle. In all cases, the acquisition of any usage and exploitation rights regarding Wollzelle’s work presupposes full payment of all associated invoices issued by Wollzelle.
10.2. Changes to Wollzelle’s work, including in particular its further development by the Client or any third party working for the Client, are only permissible with the express consent of Wollzelle and – in the case of any work protected by copyright – the copyright holder.
10.3. Any use of Wollzelle’s work that exceeds the originally agreed purpose and scope of use – regardless of whether said work is protected by copyright – requires the express consent of Wollzelle. In such event, Wollzelle and the copyright holder shall be entitled to a separate, commensurate royalty payment.
10.4. Suggestions and instructions by the Client, its employees and agents shall bear no influence on the royalty amount and do not entitle the Client to any joint copyright.
10.5 In the event that the client or any third party commissioned by the client should change or amend the source code developed by Wollzelle any warranty by Wollzelle shall be rendered invalid.
11. Identification, Trademarks
11.1. Wollzelle is authorized to identify itself and, if applicable, any copyright holders on all advertising material and in all advertising activities without payment to the Client for such identification.
11.2. Wollzelle is authorized to include the Client’s name and company logo in its own advertising materials and in particular on its websites.
12. Warranty and Damages
12.1. The Client shall assert any possible claims promptly, but at the latest within three (3) working-days after the delivery of the work by Wollzelle. All claims must be made in writing and be accompanied by a comprehensive description of the claimed deficiencies. In the case of justified and timely claims, the Client shall only be entitled to correction or replacement of the work by Wollzelle.
12.2. In the event of a justified claim, Wollzelle shall undertake to remedy the deficiencies within a reasonable period of time, whereby the Client agrees to facilitate all measures necessary by Wollzelle to examine and remedy these deficiencies. Wollzelle is entitled to refuse to correct the work in the event that such correction should either prove impossible or require a disproportionately high amount of effort on the part of Wollzelle.
12.3. The reversal of the burden of proof according to § 924 of the Austrian Civil Code (“Allgemeines bürgerliches Gesetzbuch”) is expressly excluded. The Client shall furnish proof of the existence of the deficiency at the time of delivery, the time of identification of the deficiency and the timely notification of the claim by the Client.
12.4. Wollzelle shall further only be liable for damages that shall be proven to be the result of willful intent or gross negligence on the part of Wollzelle. Any liability for consequential damages and lost profit is expressly excluded.
12.5. Damage and/or warranty claims are subject in all cases to a statute of limitation of six (6) months after delivery.
13. Liability Regarding Competition, Copyright, Trademark Law
13.1. Wollzelle shall notify the Client of any legal concerns regarding competition, copyright or trademark law in connection with the proposed advertising activities or advertising materials. Wollzelle assumes no liability whatsoever in the event that the Client should, despite these concerns, nonetheless elect to make use of said advertising activities or advertising materials. The Client shall defend, indemnify and hold Wollzelle harmless and free from blame from and against any or all claims of any third party against Wollzelle resulting or arising from the use of said advertising activities or advertising materials.
13.2. The Client shall check any material (photos, logos, etc.) provided by the Client for use in the order for any existing copyright, trademark rights or other rights of any third parties. Wollzelle assumes no liability whatsoever for any violation or infringement of any such rights. The Client shall defend, indemnify and hold Wollzelle harmless and free from blame from and against any or all claims of any third party against Wollzelle resulting or arising from such violation or infringement.
14.1. The Parties agree to treat and maintain in strict confidence all technical and commercial information and documents, in particular market and sales information, made known to them by the other Party and to protect such information and documents from unauthorized access by any third parties.
14.2. Confidential data and information shall only be disclosed and made available to those members of staff who require access to such data and information to properly carry out the contractually agreed work. All such members of staff shall be expressly informed of the confidential nature of such data and information and shall be obliged to treat and maintain this data and information in strict confidence in accordance with these General Terms and Conditions.
14.3. The Parties agree not to disclose or make available in any other way the details and conditions of their contract to any third parties.
14.4. The confidentiality provisions agreed in this contract shall remain in effect for a period of twelve (12) months from the date of completion of the contract.
14.5. The Parties agree to respect and be bound by the provisions of the Austrian Data Protection Act (“Datenschutzgesetz”).
15. Jurisdiction, Applicable Law
15.1. All contracts between the Client and Wollzelle shall be subject to and construed in accordance with the laws of the Republic of Austria with the express exclusion of its international rules of referral and the UN Convention on the International Sale of Goods.
15.2. In the event that any provision of these General Terms and Conditions is held to be or becomes invalid or unenforceable, the remaining provisions shall remain in full force and effect. In such a case, the invalid or unenforceable provision shall be replaced with a valid and enforceable provision that best meets the business objectives of the invalid or unenforceable provision.
15.3. Place of performance is Vienna, Austria.
15.4. Any disputes between Wollzelle and the Client shall be subject exclusively to the jurisdiction of the appropriate relevant court in Vienna, Austria (Wien Innere Stadt).
15.5. The above General Terms and Conditions are a translation of Wollzelle’s German General Terms and Conditions (“Allgemeine Geschäftsbedingungen”) and are provided for information purposes only. In the case of any discrepancies or differences in interpretation, Wollzelle’s German Terms and Conditions shall prevail.