General Terms and Conditions of Business
ikp Wien GmbH, ikp Salzburg GmbH, ikp Vorarlberg Gmbh
(Last updated: 1 June 2018)
1.General terms
1.1 The General Terms and Conditions of Business of ikp Wien GmbH (ikp) are based on the General Terms and Conditions of Business for Public Relations and the recommendations of the Public Relations Association Austria (PRVA).
1.2 The General Terms and Conditions of Business of ikp define ikp’s rights and obligations and are an integral part of every quotation and every agreement made with ikp. Amendments to these terms and conditions must be made in writing.
1.3 By placing an order the Client acknowledges and accepts these terms and conditions.
1.4. On execution of the agency contract, the client also accepts the obligation to adhere to the PRVA Code of Conduct.
2. Scope and validity, performance of contract
2.1. Orders and agreements are only legally binding if they have been confirmed in writing by ikp. Decisions recorded in the minutes of business meetings are also legally binding agreements, if the Client does not raise any objections within one week of receipt of the minutes. Amendments to contracts must be made in writing.
2.2. The Customer must review and approve all services provided by the Agency (in particular all preliminary designs, sketches, final artwork, proofs, PDFs for proofing and colour prints).
2.3. Generally, data is only shared with the Customer or third parties engaged by the Customer in protected, non-editable files (e.g. a protected PDF). Editable files (e.g. InDesign, XPress, etc.) may only be supplied to the Customer subject to a separate written agreement and an additional fee.
2.4. The Customer has a duty to verify that content, documentation and other information (photos, logos, etc.) provided by the Customer for performance of the contract are not subject to existing copyright, trademark or other third-party rights. The Agency will not be liable for any infringement of such rights. If a third party asserts a claim against the Agency in respect of an infringement of such rights, the Customer will fully indemnify and hold harmless the Agency, including for the payment of any penalties, and court and legal costs for the Agency’s defence.
3. Delivery and delivery dates
3.1 In principle, delivery dates are provided as approximate dates. Therefore, delivery later than the stated delivery date will not give rise to any legal claims of the Client. Nevertheless, ikp will make efforts to adhere to delivery dates.
3.2 If a precise delivery date is expressly agreed, or the special nature of the order requires delivery by a fixed date, in case of a delay the Client will be entitled to withdraw from the contract without incurring a cancellation fee in accordance with clause 6.5. If performance of the agreed service is still possible and expedient after the agreed delivery date, the Client must provide an appropriate grace period for ikp to deliver the service before declaring withdrawal from the contract. If the Client ultimately withdraws from the contract, ikp is entitled to invoice the Client for all usable services performed. Claims of the Client based on delayed delivery in addition to withdrawal from the contract, in particular damages claims, are excluded unless ikp is responsible for the delay due to gross negligence or wilful intent.
3.3 Adherence to precise delivery dates is conditional upon timely receipt (i.e. in accordance with the deadlines specified by ikp) of all documents and information that must be provided by the Client in order for ikp to perform the service. ikp bears no responsibility for delays in delivery resulting from provision of incorrect or incomplete information, subsequent changes to information, or a failure to provide documents, and such delays do not entitle the Client to withdraw from the contract.
4. Payment terms
4.1 Services performed by ikp will be invoiced in accordance with the applicable fee schedule provided to the Client, unless otherwise expressly agreed in writing. For special and one-off projects that are not covered by the fee schedule, or for which a fee deviating from the schedule is expressly agreed, ikp will prepare a separate quotation including a cost plan.
4.2 The cost plan can either take the form of a binding offer or a non-binding estimate. Offers are only prepared in writing and contain an express reference to the fact that they are binding. If no reference to the binding nature of the cost plan is included, or if the cost plan is communicated verbally, the cost plan is a non-binding estimate.
4.3 If it proves to be unavoidable that a non-binding estimate will be substantially exceeded, the Client may withdraw from the contract subject to payment of appropriate compensation for work already performed by ikp. Costs more than 20% higher than the estimate will represent a substantial cost overrun. ikp has a duty to inform the Client without delay as soon as it becomes clear that a substantial cost overrun is unavoidable.
4.4 All invoices from ikp are issued in euros and are payable immediately upon receipt without any deductions. The payment terms specified for the total invoice amount apply analogously to partial invoices.
4.5 ikp is entitled to demand payment on account of up to 50% of the total invoice amount. 100% of the basic fee must be paid in advance; additional costs and bank charges (foreign exchange charges, etc.) will be borne in full by the Client. In case of default, default interest will be charged at the regular bank rate.
4.6 Non-adherence to the agreed payment terms will entitle ikp to suspend work on all orders until the Client fulfils its payment obligations, including on orders for which a precise delivery date has been expressly agreed. The suspension of work due to non-compliance with payment terms does not give rise to any legal claims on the part of the Client, or prejudice the rights of ikp in any way.
5. Billing of third-party services
5.1 Third-party services such as printing, photography, set, lithography and reprography costs, space rental, technical equipment, speakers’ fees, guest authors’ fees, entertainment programmes for events, and sundry expenses (large-volume photocopying, hospitality, courier and postal services, telephone and fax costs, long-distance travel costs) may be invoiced in one of two ways:
- The Client is invoiced directly for the third-party service.
- ikp handles invoicing and payment. In this case, a fee of 17.5% of the respective invoice amount will be charged for the related administrative costs and time incurred, as well as to cover pre-financing and collection risk. This excludes media costs, invoicing of which will be agreed separately.
5.2 Travel expenses will be invoiced either in accordance with the official kilometre allowance or according to Austrian Federal Railways prices (business travel, first class). Accommodation expenses will be charged on either on the basis of fixed rates or the hotel invoice. In the case of travel by ikp staff, in addition to expenses, travel time will be invoiced at half the hourly rate.
6. Warranty
6.1 ikp undertakes to carry out contracted services with due professional and commercial care, to the best of its ability and in accordance with the generally accepted principles of communication activities. ikp has a duty to verify with the due diligence of a businessperson that communication measures are legally permissible as well as professionally and ethically acceptable. ikp will only be liable for infringement of third-party intellectual property rights if ikp was aware of, or must have been aware of, the existence of such rights. If the Client is found guilty of infringing competition law, recourse against ikp is excluded.
6.2 ikp warrants that the services stated in the order will be executed properly. Complaints must be made without delay following performance of the agreed services. The defects must be sufficiently detailed in writing and demonstrated by the Client.
6.3 The Client will grant ikp a reasonable period to remedy any defects; otherwise, ikp will be released from liability for defects. If the defects are remedied by ikp within such reasonable period, the Client will not be entitled to claim a reduction in price. Immaterial defects do not give rise to a right of withdrawal or reduction in price. Improvements or replacement services will be executed solely by ikp. Warranty claims do not entitle the Client to withhold or set off agreed payments.
6.4 If performance of a contractually agreed service is impossible due to force majeure, i.e. unforeseeable events that fundamentally prevent the completion of work, ikp will notify the Client without delay. In such cases, both the Client and ikp will be entitled to withdraw from the contract. In this case, ikp may invoice the Client purely for expenses already incurred and services already delivered.
6.5 In all other cases the Client may only withdraw from the contract or parts of the contract if ikp agrees to such withdrawal in writing. ikp may make agreement to withdrawal from the contract conditional on payment of a cancellation fee amounting to 25% of the total contractually agreed fee. If expenses have already been incurred and/or services performed, these will be invoiced to the Client and the cancellation fee will be based on the fee for the remainder of the contractual services.
7. Compensation for damages
In accordance with legal regulations, ikp will be liable for all damages resulting from gross negligence or wilful intent on the part of ikp or its employees. Unless otherwise mandated by law, liability for damages is limited to the invoice amount.
8. Presentations
8.1 ikp charges a fee for presentations. If the fee is not separately agreed, it is calculated according to the fee schedule for concept development.
8.2 If the contract is awarded to ikp, the fee charged for presentations will be deducted from the total order amount.
9. Rights of use, title and protection of copyright
9.1 The Customer acknowledges that the Agency is exclusively entitled to all rights in the intellectual services specified in the agency contract and delivered to the customer (e.g. scribbles, preliminary drafts, rough sketches, final artwork, concepts, texts, image data), in particular the rights to exclusive exploitation, adaptation and – where legally permissible – moral rights. The Customer’s permissions in respect of the intellectual services are limited to those specified in the agency contract and these General Terms and Conditions. All other intellectual property rights are expressly reserved by the Agency.
9.2 Unless the parties explicitly agree otherwise, on paying the agreed compensation the Customer only acquires a non-exclusive, non-transferable licence to use the services within the contractually agreed scope, for the purpose and in the place specified in the contract, and for the agreed period. Any further use, exploitation, adaptation, and/or transmission whatsoever is prohibited. In all cases, acquisition of rights of use and exploitation of the Agency’s services is conditional on full payment of the invoice issued by the Agency for such services.
9.3 The Customer may only transfer its licence to a third party if the Agency expressly agrees to the transfer in writing and the third party has agreed to the limitations on use. In case of such a transfer, the Customer’s licence is terminated automatically. The Agency is under no obligation to agree to such a transfer.
9.4 Changes to and other adaptations of the Agency’s intellectual services, such as their further development by the Customer or third parties engaged by the Customer, are only permitted with the Agency’s express agreement as well as that of the copyright holder, if applicable, unless otherwise agreed in the agency contract.
9.5 The way in which ikp’s intellectual property rights may be used by the Client, the means by which they may be used and the limits on use are determined by the agreements made. Any and every use of such rights beyond the contractually agreed use requires ikp’s express consent.
9.6 Documents, proposals and similar content are the intellectual property of the Agency or of third parties. The Customer is not permitted to reproduce such content and/or make it accessible to third parties.
10. Confidentiality, data protection
10.1.ikp undertakes to ensure that its employees and others engaged to perform services keep all trade secrets confidential.
10.2. The Agency handles personal data received from the Customer strictly in accordance with applicable data protection law.
10.3. Each party warrants to the other that it will keep confidential all trade and business secrets of which it becomes aware in connection with the agency contract and its fulfilment, and will not disclose such information to third parties unless it is generally known, or must be disclosed in accordance with a legally effective official or judicial decision. This obligation applies beyond the end of the contractual relationship for an unlimited period. The Agency undertakes to ensure that its staff are obliged to comply with paragraph 15 Datenschutzgesetz (Austrian Data Protection Act) or, from 25 May 2018, with the General Data Protection Regulation.
11. Use of Artificial Intelligence (AI)
ikp uses artificial intelligence (AI) in certain work processes, but only in strict compliance with internal guidelines and standards. To ensure security, confidentiality and quality of service, ikp only uses proven and trusted licensed business applications that comply with applicable privacy and regulatory requirements. The use of AI is always under human control to ensure that ikp’s high quality standards are met.
12. Media cooperations
ikp will execute advertorials, media cooperations and similar special forms of advertising ordered by the Client in accordance with paragraph 26 Mediengesetz (Austrian Media Act), the applicable provisions of the PRVA Code of Conduct (paragraphs 9 and 10) and the recommendations of the Austrian Ethics Council for Public Relations, with a notice signifying paid content.
13. Jurisdiction
The parties agree that the competent court for ikp’s registered office will decide on all disputes arising from the contract between ikp and the Client, including any dispute regarding the contract’s existence or non-existence, regardless of the amount of the claim.