The General Terms and Conditions of plan_w
Preamble [General Principles of Cooperation] [1] These “General Terms and Conditions for Commercial Graphic Designers” [hereinafter referred to as GTC] serve the purpose of defining rights and obligations - insofar as they go beyond mandatory law – of both the Commercial Graphic Designer and his client and to create the clearest possible order relationships in business transactions. [2] These General Terms and Conditions are an integral part of contracts for work and services which have as their subject matter the professional execution of orders in the field of commercial graphic design, i.e. in the areas of activity described among others in the job description of commercial graphic designer. [3] The commercial graphic designer is entitled to have the order carried out by expert, employed employees or commercial/freelance cooperation partners [in whole or in part]. The cooperation of specialized partners must be agreed in writing. [4] The customer shall ensure that the organizational framework conditions for the fulfilment of the order at its place of business / place of performance – unless this is part of the order – permit work to be carried out as undisturbed as possible and conducive to the rapid progress of the conception, design and execution work. [5] Furthermore, the client shall ensure that all documents necessary for the fulfilment of the order are submitted to the commercial graphic designer in good time and that he is informed of all processes and circumstances that are of importance for the execution of the order, even without his express request. This also applies to all documents, processes and circumstances, which only become known during the fulfilment of the order. [6] The work of the commercial graphic designer is usually based on an agreement with the client, which includes both the scope of the services and the fee to be charged for them. It is recommended to use the sample order forms issued by the Professional Association for Advertising and Market Communication and to draw up countersigned minutes of meetings.
Art. 1 Scope of the GTC and scope of the order [1] The GTC apply if their application has been expressly agreed. [2] In order to establish as clear a contractual relationship as possible, the scope of the GTC and scope of the contract shall be defined in as much detail as possible in a service description. Such a service description contains precise information on at least the following sub-areas of the provision of services: ■ General/Subcontractor Order ■ Graphic design (draft, implementation plans), execution ■ scope of creative/handmade services ■ External services (deliveries by third parties) [3] Sufficient order bases are an indispensable prerequisite for the provision of services. Above all, these are: ■ Comprehensive briefing ■ Provision of detailed documents ■ Terms of business, etc.
Art. 2 Execution and delivery deadlines [1] When a graphic design order is accepted, precise agreements must be made regarding the deadlines for the graphic design work or deliveries to be carried out, depending on the scope of the order. [2] The services ordered shall be deemed to have been declared as soon as the work is confirmed in writing by the client. [3] The contractually agreed delivery time begins on the day of acceptance of the order by the commercial graphic designer, if all necessary working documents have been provided by the client as customer. The agreed delivery dates must always be adhered to. To the extent that damage is due at the fault of the commercial graphic designer, except in the case of intent or gross negligence, any liability for damages towards the customer as client is limited to the sum of the invoice amount for the agreed order.
Art. 3 Remuneration of presentations [1] The invitation of the client to create a presentation [preliminary draft] is regarded as an order to provide a defined service content that establishes a legal claim to remuneration for the presentation. The amount of the fee depends on the respective agreement. If the amount of the fee has not been agreed when the invitation was issued, an appropriate fee shall be due. [2] By holding the presentation, the order is accepted and fulfilled at the same time.
Art. 4 Copyright provisions and rights of use [1] The legal copyright of the commercial graphic designer in his works is essential. [2] The client is obliged to ensure that the services of the commercial graphic designer are only used for the agreed purpose of the order. [3] The rights to use the work granted to the customer may only be transferred to third parties in return for payment or free of charge with the express consent of the commercial graphic designer as the author. In case of further use beyond this, the author must always be consulted. [4] The customer is only authorized to use the copyrighted services in the agreed manner after proper payment of the agreed fee. [5] Copyrighted services may not be changed either in the original or during reproduction without the author's permission. Imitations of any kind whatsoever are inadmissible. [6] The original designs and drafts remain the property of the author and can be reclaimed after use. Archiving takes place by arrangement [especially concerning the duration]. [7] If copyright services of the commercial graphic designer are used beyond the agreed form, purpose and scope, the customer is obliged to pay the commercial graphic designer a further reasonable fee for this. This also applies in the case of a new edition of a printing unit. [8] In the case of copyrighted services of the commercial graphic designer, whose scope of use has not yet been determined at the conclusion of the contract, or copyrighted services, which are suitable for unrestricted use as a commercial object in business transactions, the fee consists of two parts: firstly as a fee for the preparation in the original and secondly as remuneration for the unlimited transfer of the rights of use (copyright). [9] If the remuneration for the unrestricted transfer of all rights of use has not been expressly stipulated upon conclusion of the contract, in case of doubt the agreed fee shall only represent the remuneration for the preparation of the services ordered. [10] The commercial graphic designer is entitled to affix his company name, including the associated corporate design, to any object designed and executed by him in an appropriate size.
Art. 5 Duty of confidentiality [1] The Commercial Graphic Designer shall treat all internal processes and information received which have become known to him through his work with the customer as strictly confidential; in particular, order-related documents shall only be made accessible to third parties with the express consent of the customer. [2] The commercial graphic designer shall encourage his employees to observe these principles and must ensure for their conduct.
Art. 6 Right of withdrawal [1] In the event that an agreed delivery time is exceeded through the sole fault of the graphic designer, the client is entitled to withdraw from the contract by registered letter if the agreed service is not rendered in essential parts within a reasonable period of grace without the client's fault. [2] In the case of force majeure, labor disputes, natural disasters and transport blocks the graphic designer is released from the delivery obligation and allow him to redefine the agreed delivery period. [3] Cancellations by the client are only possible with the written consent of the commercial graphic designer. In the event of a cancellation, the graphic designer has the right to charge an appropriate cancellation fee in addition to the services provided and accrued costs.
Art. 7 Place and time of performance [1] Unless otherwise agreed, the commercial graphic designer shall perform his services at his place of business. [2] The contractually agreed delivery time must always be observed by the commercial graphic designer. If the commercial graphic designer is responsible for a delay in delivery including a period of grace, he is obliged to pay compensation for the demonstrable damage in accordance with the statutory provisions.
Art. 8 Fees and terms of payment [1] The commercial graphic designer is entitled to an appropriate fee from the client in return for the provision of his services. [2] The total fee is generally made up of the following factors in accordance with the fee guidelines of the advertising graphic designers published by the Professional Association for Advertising and Market Communication [non-binding recommendation of the association in accordance with § 32 of the German Cartel Act]: ■ Concept [preliminary draft, conceptual approach to problem solving, sketches, scribbles, presentation of design works etc.]. ■ Design development [layout, sample, calculation, etc.] ■ Type of use [copyright, usage fee] ■ Additional services [models, procurement of order-specific information, production monitoring, etc.] ■ Surcharges on the fee [Services outside normal working hours and outside Austria] ■ Additional costs [Travel expenses, telephone costs etc.] ■ External services [3] Invoices submitted by the advertising graphic designer including VAT are payable at the agreed conditions without any deductions and free of expenses. In the event of default in payment, default interest will be charged at the usual bank rate. The terms of payment specified for the entire order shall apply equally to partial invoices. [4] In the case of orders comprising several units or work steps, the contractor shall be entitled to issue invoices after delivery of each individual unit or service. [5] The customer is not entitled to withhold payments due to incomplete overall performance, guarantee or warranty claims or complaints.
Art. 9 Fee amount [1] Unless otherwise agreed in writing, the amount of the fee is based on the relevant provisions of the "für Werbegrafik-Designer" document published by the Professional Association for Advertising and Market Communication at the time the fee note is issued. [2] The rates shown there are minimum rates.
Art. 10 Liability and warranty [1] The commercial graphic designer is obliged to execute the orders placed with him carefully and professionally while protecting all interests of his customer. He is only liable for damages in the event that he can be proven to have acted with intent or gross negligence, within the framework of statutory provisions. [2] The client for his part is liable for providing the commercial graphic designer with the documents and information necessary for the creation of the service in a timely manner. [3] Claims for damages can only be asserted in court within six months after those entitled to assert a claim become aware of the damage, but no later than three years after the event giving rise to the claim – limited to the areas of responsibility covered by the commercial graphic designer. [4] If the activity is carried out with the involvement of a third party and the customer is notified thereof, any warranty and liability claims against the third party arising under the law and the terms and conditions of the third party shall be deemed assigned to the customer. [5] The client is entitled to the removal of defects free of charge, provided that these are the responsibility of the commercial graphic designer and were reported to him immediately after knowledge. This claim expires six months after the advertising graphic designer has provided the service in question. [6] In the event of failure to rectify any defects, the customer shall be entitled to a reduction in price or, if the service provided is rightfully of no interest to the customer as a result of the failure to rectify the defect, the customer has the right to repudiate the service.
Art. 11 Applicable law, place of jurisdiction [1] Unless otherwise agreed, Austrian law shall apply to the order, its performance and any claims arising therefrom. [2] The court at the place of business of the commercial graphic designer shall have jurisdiction in disputes.
Art. 12 Other - In the event that individual provisions of the GTC should become invalid, this shall not affect the validity of the remaining provisions. [1] See the detailed job description and the fee guidelines for advertising graphic designers of the Professional Association for Advertising and Market Communication. [2] plan_w – visual communication is generally authorized to publish company names of its customers as references. Should a publication not be desired, this must be expressly communicated in writing. Furthermore plan_w – visuelle kommunikation reserves the right to publish works! [3] plan_w – visuelle kommunikation is entitled to refer to plan_w – visuelle kommunikation on all advertising material and in all advertising measures and to the author, if applicable, without the customer being entitled to a claim for payment.
General Conditions of Contract plan_w, based on Design Austria (GCC DA)
1. Applicability: These General Conditions of Contract (GCC) apply to all design contracts (creative services) between Designer, DA, and Designer’s Client. They may not be used for the sale of originals or for commercial services.
2. Basis for the Collaboration: 2.1. The basis of every contract is the framework (briefing) provided by Client, whose requirements are to be fulfilled by Designer. Within the framework of the briefing, freedom of design is allowed in carrying out the commission. 2.2. Designer is to create the work autonomously and in person, but nevertheless has the right to enlist the services of competent associates or partners. 2.3. Any possible consultancy on the part of Designer must remain strictly within the area of design. The liability for an “expert opinion” shall remain confined to this area, in accordance with the ABGB (Allgemeines bürgerliches Gesetzbuch) [the Civil Code of Austria] (Article 1299).
3. Proprietary Right and Right of Use: 3.1. Insofar as nothing else has been agreed upon between Client and Designer, Designer grants Client exclusive use of the work (exclusive right of use), with the exception of any possible programming services 3.2. Upon payment of the total fee and additional expenses, Client acquires the agreed-upon right of use to the works created in fulfilment of the commission, in the form in which they are delivered and for the agreed purpose and scope of use. If no agreement has been made as to the purpose and scope of use, the minimum scope necessary to the fulfilment of the commission shall apply. Every other or further future use can only be provided with the concurrence of Designer and against compensation. 3.3. Any modification, revision, or imitation of the works conveyed for use is inadmissible, so long as the right to alteration has not been previously granted in writing and against compensation. 3.4. The rights granted Client (or in the case of an agent, the agent’s customer) may only be conferred on a third party – whether gratuitously or for a consideration – with Designer’s express consent. 3.5. Client acquires no ownership of the designs, elaborations, or computer data. In the case of a singular succession, all rights and obligations devolve upon the legal successor; however, only within the scope agreed upon by Designer, DA, and Client. Any possible expansion of the uses by the legal successor requires under all circumstances the agreement of Designer, DA. 3.6. A licence for unrestricted right of use is required should Client wish to continue to use in unaltered form the concepts, ideas, or works that were developed or designed after either completion of, withdrawal from, or termination of a contract or service agreement. If said concepts, ideas, or works are to be altered, brought up to date, or utilised as the basis for further development by Client or a third party, the granting of the right to alteration by a third party is additionally required. A further agreement is also obligatory should Client wish to receive and keep the computer data.
4. Compensation for Presentations: 4.1. All of Designer’s services are to be compensated, with the exception of the preparation of service, time, and cost proposals necessary to making the bid. 4.2. The invitation issued by Client to prepare a presentation with preliminary sketches shall be regarded as a commission to provide a defined specification of services. The amount of the compensation for the presentation is freely negotiable and comprises half of the usual fee for a design, as deemed appropriate under Articles 1004 and 1152 of the ABGB, provided nothing else has been agreed upon. Once the presentation has been made, the presentation contract is considered as having been awarded, accepted, and fulfilled. 4.3. Upon conclusion of the presentation, should Client or the initiator of a presentation competition not award Designer or another presentation competitor contract at all, or only one that has been considerably reduced, Designer is entitled to full compensation for the design, instead of the (reduced) presentation fee. 4.4. The presentation fee includes no granting of rights of use.
5. Service, Services Provided by Third Parties, and Production Monitoring: 5.1. A suitable payment in accordance with Articles 1004 and 1152 of the ABGB will be provided as agreed for rendering the desired services, including the submission of the production data. The transfer of development data is only considered part of the service when this has been set forth in writing and an additional fee has been agreed upon. 5.2. Designer is authorised to either personally perform necessary or negotiated support services in connection with the contract against customary local compensation therefor or to engage a third party on behalf and for the account of Client. 5.3. The coordination and monitoring of the reproduction/production (such as colour or print monitoring) may be awarded by Client to external production experts or to Designer. Such services require a separate contract and shall be provided against payment.
6. Return and Storage: 6.1. Client shall receive all documents, intermediate results, designs, conception descriptions, and elaborations in trust. Until Client has acquired the rights of use, as well as in the case of denial (waiver of use), Client may not make copies of them, store them in computer systems, or make them available to third parties either for viewing or further development, unless the third party is an opinion research institute that has been engaged for decision-taking purposes. 6.2. As soon as the original sketches and computer data are no longer necessary for the agreed application, they shall either be sent back or handed over to Designer in an undamaged state for the risk and account of Client.
7. Liability: 7.1. Designer shall not be liable for slight negligence. In the case of gross negligence, Designer must assume liabilities up to the amount of his or her fee (excluding additional expenses and value added tax). 7.2. Designer must be notified of any deficiencies, with a request for their rectification, within a reasonable period of time immediately after the receipt of services. Any costs arising from the engagement of a third party to remedy a deficiency despite Designer’s willingness to carry this out personally must be borne by Client. All claims to rectification lapse after a period of six months. 7.3. Designer bears no responsibility for the legal admissibility – in particular with regard to competition,
trademark, and administrative legislation – of the designs and elaborations. Designer is also not liable for the correctness of texts and images when the works have been approved by Client or when the documents have at least been offered to Client for inspection. 7.4. Insofar as Designer enlists the necessary or agreed-upon services of others on behalf and for the account of Client, the respective contractors shall not be considered as subcontractors of Designer, DA. 7.5. The documents provided by Client (photos, texts, models, patterns, etc.) shall be used by Designer under the presumption that Client is entitled to their use and that in developing or using them, no rights of any third party are
being infringed upon. For every kind of unlawful use, Client is liable to Designer under Article 86 of the Austrian Copyright Act [Urheberrechtsgesetz (UrhG)] in the amount of twice the appropriate fee for this use, inasmuch as such use has at least been enabled through Client’s negligence or tolerance of it.
8. Identification and Reference Copy: 8.1. Under Article 20 of the Austrian Copyright Act, Designer is entitled to affix his or her name, pseudonym, company name, or logo to each of the works/products Designer has created, as well as to the advertising materials for or publications about them. The form and duration of the labelling may be arranged with Client. 8.2. Under Article 26 of the Austrian Copyright Act, Designer retains the right to employ for promotional purposes printed images of the works/products he or she has designed, or to make these images available in the World Wide Web for the same purposes. 8.3. In the case of three-dimensional objects, Designer is entitled to the gratuitous use of visual images of the objects that were produced with the aid of his or her design solution, and also should receive a reference copy, so long as the latter does not involve disproportionately high costs. In the case of printed works, Designer is entitled to a minimum of five copies of the works he or she has designed.
9. Withdrawal and Cancellation: 9.1. After submission of the first presentation, Client and Designer are each entitled to withdraw from the contract without stating reasons. However, the presentation fee, according to Point 4.2 of the GCC DA, shall nevertheless be paid by Client. 9.2. Should Client cancel the contract during the design or elaboration phase or within a valid framework agreement for reasons for which Designer is not responsible, or if Client reduces the scope of the contract, Client is obliged to remunerate the design fee plus the support services and expenses that have accrued to date. 9.3. Irrespective thereof, Designer is entitled to compensation for provided but not used work capacity and to charge Client for any possible damage suffered therefrom. Compensation for use does not apply, and Designer retains all rights.
10. Final Provisions: 10.1. This GCC DA, as well as all framework agreements, cannot be modified or amended except in a written instrument. 10.2. Exclusively Austrian law shall apply. The site of fulfilment and court of jurisdiction is Designer’s place of business.
