We, JCW Object Fabrication GmbH (hereafter referred to as OF), Gutheil-Schoder-Gasse 8-12, 1100 Vienna, Austria, provide our services to our clients (hereafter referred to as client or contractual partner) exclusively based on the following General Terms and Conditions (GTC).
1. Validity of the General Terms and Conditions (GTC)
1.1. Unless expressly agreed otherwise, these GTC shall apply to the exclusion of the GTC of our contractual partner. Our contractual partner agrees that in case of doubt our terms and conditions shall apply, even if the contractual partner's terms and conditions remain unchallenged.
1.2. Contractual performance on our part shall not be deemed to be consent to contractual terms and conditions that deviate from our terms and conditions. If any ambiguities nevertheless remain in the interpretation of the contract, these shall be eliminated in such a way that those contents shall be deemed to have been agreed which are usually agreed in comparable cases.
2. Performance and offer
2.1. OF shall provide inparticular the implementation of plans and specifications in the artistic field and in the field of event technology (hereinafter referred to as the "work") by its own employees or subcontractors. Amendments to the order by the client shall only be effective if they are confirmed in writing by OF.
2.2. Our offers shall be subject to confirmation. The contract shall not be deemed to have been concluded until the first partial payment (or the total amount, see 4.1.) has been received by us from the contracting party and a written order confirmation has been sent by us.
3. Protection of Plans and Documents / Confidentiality / Copyright / Naming
3.1. Plans, sketches, cost estimates and other documents such as brochures, catalogues, samples, presentations and the like shall remain the intellectual property of the contracting party which prepared them. Any use, in particular passing on, duplication, publication and making available, including copying, even of extracts, outside the fulfillment of the purpose of the contract shall require the explicit consent of the other contracting party. Any original documents shall be returned after performance of the contract.
3.2. Insofar as OF is commissioned with the production of reproductions and implementation of works protected by copyright, the client shall warrant to OF that he has the necessary exploitation rights for this purpose or, insofar as necessary, that he obtains these rights from third parties prior to commissioning and that he provides proof of this at the request of OF. In this respect, the client undertakes to indemnify and hold OF harmless against any claims by third parties.
3.3. OF shall be entitled to make copies of the work produced for the purpose of its own documentation. If the work has been made available to the public by the client or has been published in any other way, OF shall be entitled to publish this on the company's own website and social media channels for the purpose of its own promotion. In anycase, OF shall be entitled to name the client as the contractor's customer on the website.
3.4. Furthermore, the contracting parties undertake to maintain secrecy vis-à-vis third parties with regard to the knowledge, data and information received by them as a result of the business relationship, insofar as these have not been made public by the other contracting party itself.
4. Remuneration for work and terms of payment
4.1. Unless otherwise agreed in individual cases, 50% of the remuneration for the work shall be invoiced upon commissioning and 50% plus any additional costs shall be invoiced upon completion. If the remuneration for the work does not exceed the sum of 3.000 €, in this case 100% of the total amount shall be due upon commissioning; any additional costs shall be invoiced upon completion. Unless otherwise agreed, OF's invoices shall be due for payment without deductions as of receipt of the invoice. Invoices shall be issued and transmitted exclusively by electronic means.
4.2. The contractual partner acknowledges that a delay in the first partial payment (or payment of the total amount as stated in 4.1.) may lead to a postponement of the delivery date.
4.3. If the first partial payment does not cover the material costs or third-party costs for the production of the work, OF shall be entitled to invoice these in full plus half of the calculated fee share for the work to be performed in advance.
4.4. Unless expressly stated otherwise, all prices quoted shall be exclusive of value added tax. In the event of invoicing, the statutory sales tax shall be added to these prices.
4.5. If no justified objection is raised in writing against an invoice by OF within one week, it shall be deemed approved in any case.
4.6. Services going beyond the offer or subsequent changes at the request of the client or additional expenditure shall be invoiced additionally on a time and material basis. The hourly rates of OF shall apply. Partial hours, including travel time, shall be charged as full hours. Third-party costs and material costs shall be charged on a time and material basis.
4.7. Cost estimates shall be drawn up to the best of OF's knowledge, but no guarantee can be given as to their correctness. Should costs increase by more than 15% after the order has been placed, the contractor shall notify the client thereof without delay.
In the case of unavoidable cost overruns of up to 15%, a separate notification is not required and these additional costs can be invoiced without further ado.
4.8. The contracting party shall not be entitled to offset counterclaims.
5. Interest on arrears
Even in the event of default in payment on the part of the party ordering the work through no fault of its own, OF shall be entitled to charge default interest at the rate of 10% above the prime rate per annum; this shall not affect claims for compensation for proven higher interest.
6. Place of Performance / Delivery and Acceptance / Transfer of Risk
6.1. The place of performance shall in principle be the production site of OF.
6.2. The contracting party acknowledges that OF shall commence work only after payment of the first partial invoice (or payment of the total amount as stated in 4.1). The contracting party acknowledges that late payment may lead to a postponement of the completion date of the work and that this shall not result in any consequences of default.
6.3. Delivery of the commissioned work to the client shall only take place after payment of the total fee, unless otherwise agreed in individual cases. To this end, the contracting party shall be notified by OF about the completion of the work and shall be given the opportunity to inspect the work on site at OF and to accept it. If acceptance on site is not possible, the client shall be given the opportunity for acceptance via video link.
6.4. If the client does not make use of the opportunity to inspect and accept the work within 2 weeks of notification of completion, the work shall be deemed to have been accepted and OF shall be entitled to invoice the final invoice.
6.5. In the absence of any explicit agreement to the contrary, the client shall bear the costs and risk of transport in the case of deliveries, even if the transport is commissioned by OF at the client’s request.
7. Retention of title and consequences of default in payment
7.1. Not withstanding the other terms of the contract, the work shall remain the property of OF until the purchase price and all costs and expenses have been paid in full. A resale of the work shall only be permissible if it has been announced in good time in advance, stating the name or company and the exact business address of the buyer, and if OF consents to the sale. In the event of consent, the purchase price claim shall be deemed to have been assigned to OF and OF shall be entitled at any time to notify the third-party debtor of such assignment.
7.2. In the event of default in payment, OF shall be entitled to assert the rights arising from the retention of title. It is agreed that the assertion of the retention of title shall not constitute a rescission of the contract unless we expressly declare rescission of the contract.
7.3. Furthermore, in the event of default in payment despite the setting of a grace period, OF shall in particular be entitled (but not obliged), and explicit consent shall be given for this purpose, to sell the work to third parties and to use the proceeds to cover the outstanding agreed fee for the work and other costs and expenses. The additional proceeds shall be paid to the contracting party.
8. Default of delivery and performance, default of acceptance
8.1. The customer shall in any case accept minor delays in delivery without being entitled to claim damages or to withdraw from the contract. In particular, the client acknowledges that a delay on the part of the client with the first partial payment or with information or materials to be provided shall lead to a postponement of the completion date.
8.2. The delivery date shall be agreed as fixed insofar as OF may, in the event of delay on the part of the client with the first partial payment (or payment of the total amount as stated in 4.1) or with information or materials to be provided, withdraw from the contract by mere declaration without setting a further grace period. OF shall be entitled to claim all damages resulting from the delay.
8.3. The agreed delivery periods shall be extended appropriately in the event of unforeseen obstacles to delivery (e.g. force majeure, delays in execution due to weather conditions, delays in delivery of raw materials and the like), as well as in the event of delayed receipt of documents required for production which are provided by the client (e.g. plans, models and the like). In particular, the contracting party undertakes to respond promptly to any queries from OF concerning the manner in which the work is to be executed and produced.
8.4. OF shall then, when the actual exceeding of the deadline can be estimated, but at the latest one week before the originally agreed delivery date, announce how long a delay is to be expected.
8.5. Exceeding the delivery periods shall not entitle the buyer/ordering party to claim damages or warranty.
8.6. If our contract partner is in default of acceptance, OF shall be entitled, at its own discretion, to store the work at OF's premises or at the premises of third parties, for which OF shall charge a reasonable storage fee per calendar day or part thereof, or the costs of storage by third parties shall be reimbursed.
9. Unilateral changes in performance
9.1. Objectively justified and reasonable changes to the performance or delivery obligation or deviations from the plans provided for technical reasons, as well as reasonable delivery time or short-term payment deadline overruns shall be deemed to have been approved in advance.
9.2. Factually justified and minor changes which do not affect the price or the quality of the work only slightly may be made by OF at its own discretion and shall not entitle the customer to non-acceptance or price reduction.
10.1. OF warrants exclusively the implementation of the work on the basis of the plans, specifications and information provided to the best of its knowledge and current technical expertise. In this respect, OF shall in principle have no obligation to check or warn with regard to the plans and specifications provided. In particular, OF does not warrant any particular suitability of the work. In particular, OF does not guarantee any specific success, aesthetics or durability of the work, insofar as the plans and specifications of the client have been complied with in the course of the production of the work.
10.2. If, in the course of implementing the client’s plans and specifications, it transpires that implementation in accordance with the client’s specifications is not technically possible, OF shall point this out and request the client to adapt the plans and specifications accordingly and, if possible, provide adaptation proposals. Any additional costs incurred as a result shall be borne by the client. If it turns out that the plans and specifications cannot be implemented, either party shall be entitled to withdraw from the contract. The costs incurred up to that point and the work performed by OF shall be reimbursed by the client.
10.3. OF's warranty shall be limited exclusively to the replacement of demonstrably defective or unsuitable materials and services. Apart from those cases in which the right to rescission is granted by law, OF reserves the right to satisfy the warranty claim at its own discretion by improvement, replacement or price reduction.
10.4. A warranty claim shall only exist if the work is checked for completeness and defects immediately after inspection. The contracting party shall notify OF of the nature and extent of the defect without delay, but at the latest within 7 days of inspection.
10.5. Hidden defects shall be notified immediately after their discovery. If a complaint is not made or not made in good time, the goods shall be deemed to have been approved. In such cases the assertion of warranty claims or claims for damages as well as the right to contest errors due to defects shall be excluded.
10.6. Minor dimensional differences do not entitle to complaints. The right of recourse according to §933b ABGB is excluded.
11. Compensation for damages
Claims for damages in cases of slight negligence are excluded; this does not apply to personal injury. Liability for consequential harm caused by a defect is excluded in any case.
12. Product liability
Any recourse claims that contractual partners or third parties may make against us under the title of "product liability" as defined by the Product Liability Act (PHG) shall be excluded unless the party entitled to recourse proves that the defect was caused in our sphere and was at least due to gross negligence.
13. Prohibition to refuse performance and prohibition to withhold performance
Justified complaints do not entitle the customer to withhold the entire invoice amount ,but only an appropriate part of it.
14. Formal requirements
All agreements, subsequent amendments, supplements, side agreements, etc. must be in writing to be valid (e-mail is sufficient, other electronic notifications such as SMS or WhatsApp messages are not sufficient).
15. Choice of Law
Austrian substantive law shall apply to this contract, the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
16. Jurisdiction agreement
For the resolution of all disputes arising from this contract, the court with subject-matter jurisdiction at the seat of our company shall have exclusive local jurisdiction. However, we shall also have the right to file suit at the general place of jurisdiction of the contractual partner.