1. ZIMET Konzepte zur Fotografie e.U. (ZIMET) provides its services on the basis of the following General Terms and Conditions (AGB).
2. The offers made by ZIMET are non-obligatory and non-binding
3. If the potential customer has invited ZIMET in advanced to prepare a concept, and if ZIMET accepts the invitation before the main contract is concluded, the following regulations apply:
3.1. The concept is covered in its linguistic and graphic parts – if they actually reach the threshold of originality – by the protection of the copyright law. The utilisation and processing of these parts without the approval of ZIMET are not permitted to the potential customer alone on the basis of the copyright law.
3.2. In addition, the concept includes promotion-relevant ideas that do not reach the threshold of originality and therefore are not covered by the copyright law. Such ideas arise at the beginning of every creative process and hence can be the trigger of all that emerges later on; thus they can be defined as the origin of marketing strategies. Accordingly, all unique elements of the concept that lend the singular character to the marketing strategy are protected. Within the meaning of this agreement the following are considered specifically as ideas: advertising slogans, advertising texts, graphics and illustrations, promotional materials, etc., even if they do not reach the threshold of originality.
3.3. The potential customer commits himself not to utilise or let others utilise, or to use or let others use the concepts and creative ideas presented by ZIMET for economic purposes outside the corrective of the main contract that might be concluded later on.
3.4. If the potential customer is of the opinion that ideas presented to him by ZIMET were already his own before the presentation, he must inform ZIMET within 14 days from the day of the presentation via email and by stating evidence that will enable temporal allocation. In the alternative case, the contract partners assume that an idea considered new by the potential customer has been presented to him by ZIMET. If the idea is utilised by the customer, it is assumed that ZIMET has closed the deal (has become meritorious).
3.5. The potential customer can absolve himself from obligations in this regard by paying an appropriate compensation, plus 20% VAT. The exemption comes into force only after ZIMET has received the entire payment.
4. The customer will allow ZIMET to access in a timely manner all information and documents necessary for the performance of the services. He will inform ZIMET of all circumstances which are significant for the performance of the order, even if these circumstances become known only while the order is in the process of being executed. If work has to be repeated by ZIMET or is delayed because the information provided by the customer was incorrect, incomplete or had to be changed later on, the customer is responsible to cover all expenses arising from these circumstances.
5. Additionally, the customer has the obligation to check the documents provided for the execution of the order (photos, logos, etc.) with regards to the copyright, brand and trademark law or other rights of third parties. The customer ensures that the documents are free from the rights of third parties and can therefore be used for the intended purpose. ZIMET is not liable in cases of slight negligence or after fulfilling its duty to warn – in any case in the internal relationship with the customer – for violations of such rights of third parties in relation to documents provided. If, on the basis of such violations of the law, claims are lodged against ZIMET by third parties, the customer indemnifies ZIMET and holds it harmless; the customer must compensate all harm caused to ZIMET by claims of third parties, especially expenses for reasonable legal representation. The customer is committed to supporting ZIMET in its defence against possible claims by third parties. The customer provides all documents to ZIMET for that purpose without being asked.
6.1. ZIMET is entitled to carry out the service itself at its own discretion or to employ skilled third parties for the execution of the contractual services as performing agents and/or to substitute/outsource such services (external service).
6.2. The commissioning of third parties as part of such an external service is done either in ZIMET’s own name or in the name of the customer – in the latter case, after the customer has been informed about it. ZIMET will choose such a third party carefully and make sure that the third party is in possession of the necessary professional qualifications.
6.3. Obligations towards third parties that have been made known to the customer and which have exceeded the contract period are the responsibility of the customer. This applies explicitly also in the case of a cancellation of the contract with ZIMET due to an important reason.
7.1. Stated delivery and performance deadlines are considered as approximate und non-binding, unless they have been agreed upon explicitly as binding. Binding date arrangements must be in written form and must be confirmed by ZIMET in writing.
7.2. If the delivery/performance of ZIMET is delayed due to reasons not in the power of ZIMET, e.g. events of force majeure and other unpredictable events that cannot be prevented with appropriate means, the performance obligation is suspended for the duration and extent of the hindrances and the deadlines are extended accordingly. If such delays last more than two months, both the customer and ZIMET have the right to withdraw from the contract.
7.3. If ZIMET is in default, the customer can only withdraw from the contract after granting an appropriate grace period of at least 14 days and after this period has passed in vain. Claims for damages by the customer on the basis of non-performance or default are excluded, except in the case of proof of malice or gross negligence.
8.1.ZIMET has the right to cancel the contract due to important reasons with immediate effect. An important reason exists if
a. the performance of the services becomes impossible due to reasons that are the responsibility of the customer, or if despite the granting of a grace period of 14 days the performance is further delayed;
b. the customer violates important obligations in this contract, e.g. transfer of due payments or the duty to cooperate, despite a written warning and the granting of a 14-day grace period;
c. justified concerns regarding the credit-worthiness of the customer exist, and if the customer does not make the advance payment as requested by ZIMET and does not provide adequate security to ZIMET prior to the performance.
8.2. The customer has the right to annul the contract due to important reasons without granting a grace period. An important reason exists especially if ZIMET continues to violate important contract provisions, despite having been warned in written form and despite being granted an appropriate grace period of at least 14 days to correct the contract violations.
9.1. If no other agreement has been made, ZIMET is entitled to its fee after each individual service has been performed. ZIMET is entitled to request advance payments to cover its expenses. If the order takes a longer period of time, ZIMET is entitled to issue interim invoices, request advance payments or payment on account.
9.2. The fee shall be the net amount plus the legally applicable VAT. If no agreement has been made for individual cases, ZIMET is entitled to a market-based fee for services rendered and for the handing over of copyrights and trademark law user rights.
9.3. All cash expenses accrued by ZIMET must be compensated by the customer.
9.4.If the customer changes or terminates commissioned work unilaterally without including ZIMET in the decision – irrespective of other ongoing support by ZIMET – he must compensate ZIMET for the services rendered until that point in time and in accordance with the fee agreement for all accrued expenses. If the termination is not justified by a negligent or intended violation of duty by ZIMET, the customer must reimburse the entire agreed fee for the contract (commission), whereby the crediting compensation according to § 1168 AGBG (General Terms and Conditions) is excluded. Furthermore, ZIMET must be indemnified and held harmless concerning possible third party claims, especially contractors of ZIMET. By paying the fee, the customer does not acquire any user right with regards to the service already rendered; concepts, drafts and other documents that have not been executed must be returned to ZIMET without delay.
10.1. The fee is due immediately and without deduction at the time the invoice is received unless special conditions of payment have been agreed upon in individual cases and in written form.
10.2. In the case of delayed payment by the customer, ZIMET can declare as due and payable with immediate effect all services and partial services that were concluded as part of other contracts concluded with the customer.
10.3. Furthermore, ZIMET is not obliged to provide further services until payment of the outstanding amount has been made (right of retention). The obligation to pay remunerations is not affected by this.
10.4. The customer does not have the right to offset his own claims against claims by ZIMET, except in cases where ZIMET acknowledged the claim of the customer in written form or if it was recognised by a court.
11.1. All performances by ZIMET, including those in presentations (e.g. stimuli, ideas, sketches, preliminary drafts, scribbles, fine-drawings, concepts, negatives and slides) and individual parts of them, work pieces and draft originals remain the property of ZIMET and can be demanded back by ZIMET at any time – especially at the time of the contract termination. Through payment of the fee, the customer acquires the right of utilisation for the agreed purpose of use. The customer may use the performances of ZIMET only in Austria, unless a different agreement is made. The acquisition of the right to use and the right to utilise the performances of ZIMET is based on the complete payment of the fees invoiced by ZIMET. If the customer utilises the performances of ZIMET before this time, the utilisation is based on a loan agreement, which can be revoked at any time.
11.2. Changing or processing performances of ZIMET, especially their further development by the customer or third parties employed by the customer, is only permitted with the explicit approval of ZIMET and – to the extent that the performances are protected by copyright – by the approval of the author. The return of so-called “open files” explicitly does not become part of the contract. ZIMET is not obliged to return them. In other words, without an agreement of cession of the rights to utilisation including also “electronic works”, the customer does not have a legal right to them.
11.3. For the utilisation of performances by ZIMET that go beyond the originally agreed purpose and scope of utilisation, the approval of ZIMET is required, regardless of whether these performances are protected by copyright law. In such a case, ZIMET and the author are entitled to additional adequate remunerations.
11.4. For the utilisation of performances by ZIMET or for promotional materials for which ZIMET created conceptual and design templates, the approval of ZIMET is required even after termination of the contract, regardless whether the performance is protected by copyright or not.
11.5. The customer is liable to ZIMET for every unlawful utilisation with twice the appropriate amount of the fee for such a utilisation.
12.1. ZIMET has the right to make a reference to ZIMET and to the author on all promotional articles and in all advertising activities if appropriate. This does not result in claims to payments for the customer.
12.2. ZIMET has the right – subject to a possible written revocation by the customer, which is possible at any time – to refer on its own advertising media, especially on its website to names and company logos of existing or former business relationships (reference particulars).
13.1. The customer must report possible defects immediately or at least within eight days of the delivery/performance by ZIMET; concealed defects must be reported within eight days of their discovery in written form accompanied by a description of the defects; otherwise, the performance is considered accepted. In the latter case, the raising of warranty and damage compensation claims as well as the right to rescission on the grounds of error due to defects shall be excluded.
13.2. In the case of a justified and timely notice of defects, the customer is entitled to an improvement or replacement of the delivery/performance by ZIMET. ZIMET will correct the defects within a reasonable time period, whereby the customer enables the agency to carry out all necessary measures to inspect and remedy the defects. ZIMET has the right to refuse to carry out an improvement of the performance if this is impossible or if it requires disproportionate effort on the part of ZIMET. In such a case the customer is entitled to the legal conversion right or the right to reduce the price. In the event of an improvement, it is up to the customer to arrange the transmitting of the defective (physical) item at his own expense.
13.3. It is up to the customer to carry out an inspection of the performance with regard to its legal and specifically its competition, brand, copyright and administrative legitimacy.
13.4. The warranty period is six months from the time of delivery/performance. The right of recourse against ZIMET expires according to § 933b (1) AGBG one year after the delivery/performance. The customer is not entitled to withhold payment on the basis of notation/criticism. The presumption provision according to § 924 AGBG is excluded.
14.1. In cases of slight negligence, a liability of ZIMET and its employees, contractors or other performing agents (persons) for material or pecuniary damage to the customer is excluded, regardless of whether it concerns direct or indirect damages, lost profits or consequential damage, damage due to default, impossibility, positive violation of contractual duty, culpability at the time of concluding the contract, due to deficient or incomplete performance. The existence of gross negligence must be proven by the wronged party. The extent to which the liability of ZIMET is excluded or limited also applies to the personal liability of its “people”.
14.2. Any kind of liability by ZIMET concerning claims that are raised on the basis of a service rendered by ZIMET (e.g. advertising activities) against the customer are explicitly excluded if ZIMET has fulfilled its duty to notify or if such could not be recognised by it, whereby slight negligence does not harm. In particular, ZIMET is not liable for legal costs, lawyers’ fees of the customer or costs as a result of publication of a judgement as well as possible claims for damages or other claims of third parties; in this regard, the customer must indemnify ZIMET and hold it harmless.
14.3. Claims for damages by the customer expire after six months from the time of knowledge of the damage, but in any case three years from the time of the infringing act by the agency. Claims for damages are limited in their amount by their net order value.
15. Regarding the place of jurisdiction for all legal disputes between ZIMET and the customer in the context of this contractual relationship, the court with subject-matter jurisdiction at the main office address of ZIMET is agreed. Nevertheless, ZIMET has the right to sue the customer at his general place of jurisdiction.
16. The Place of fulfilment is the main office of ZIMET. In the case of dispatch, the risk is transferred to the customer as soon as ZIMET has handed over the goods to a transport company of its choice.
17. The contract and all mutual rights and obligations derived from it as well as the claims between ZIMET and the customer are subject to the Austrian substantive law, excluding its conflict of law rules and excluding the UN sales law (CISG).
18. If individual provisions of these General Terms and Conditions (AGB) become void, it does not affect the binding force of the other provisions and the concluded contract based on them. The void provision has to be replaced by one that is valid and is closest to the spirit and purpose.