General Terms and Conditions of
Hackabu GmbH, Praterstraße 1/Space 21, 1020 Vienna, FN 467924z
1. Applicability; Conclusion of contract
1.1 Hackabu GmbH (hereinafter "Hackabu") shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between Hackabu and the Client, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, i.e. B2B transactions. The customer declares to be an entrepreneur within the meaning of the KSchG and is liable to Hackabu with this information.
1.2 The version applicable at the time of conclusion of a contract shall be relevant. Deviations from these GTC and other supplementary agreements with the Client shall only be effective if they have been confirmed by Hackabu in writing.
1.3 Terms and conditions of the Client, if any, shall not be accepted, even if Hackabu knows them, unless expressly agreed otherwise in writing on a case-by-case basis. Hackabu expressly objects to GTC of the Client. No other objection of Hackabu to the Client's GTC shall be required.
1.4 The Client shall be informed about amendments to the GTC; they shall be deemed agreed unless the Client objects to the amended GTC in writing within 14 days; in the information the Client will be expressly informed about the consequence of silence on his part.
1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded on the basis of the same shall not be affected. The ineffective provision shall be replaced by an effective provision which comes as close as possible to the meaning and purpose of the ineffective one.
1.6. The personal designations used in these documents stand for both female and male persons.
1.7 Hackabu's offers shall be subject to change without notice and to being non-binding.
2. Social Media Channels Before an order is placed Hackabu expressly points out to the Client that providers of "social media channels" (e.g. Facebook; here inafter referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotional appearances for any reason whatsoever. Accordingly, Providers are not obliged to forward content or information to users. Thus, there is a risk, which cannot be calculated by Hackabu, that advertisements or promotional appearances are removed for no reason. Although in the case of a complaint of a different user Providers do offer an opportunity to reply, the content will be immediately removed also in that case. In that case restoring the original, lawful condition may take some time. Hackabu works on the basis of the Providers' terms and conditions of use, on which it has no influence, and also makes them the basis of Client orders. By placing the order the Client expressly acknowledges that those terms and conditions of use (co-)determine the rights and duties of a contractual relationship, if any. Hackabu intends to execute the Client's order to the best of its knowledge and belief and to comply with the policies of "social media channels". Due to the terms and conditions of use that are currently applicable and the fact that every user can easily allege a violation of the law with the aim that contents will be removed, Hackabu cannot guarantee that the ordered campaign can be retrieved at any time.
3. Protection of Concepts and Ideas
If a potential Client has already invited Hackabu beforehand to develop a concept and if Hackabu accepts this invitation prior to conclusion of the principal contract, the following shall apply:
3.1 By the invitation from the potential client and acceptance of the invitation by Hackabu the potential Client and Hackabu enter into a contractual relationship ("pitching contract"). That contract will also be based on these GTC.
3.2 The potential Client acknowledges that already by developing a concept Hackabu will render cost-intensive services, even though the Client himself has not taken on any performance duties yet.
3.3 To the extent that they reach the level of originality required for copyright protection the linguistic and graphic parts of the concept are protected by the Austrian Copyright Act [Urheberrechtsgesetz]. The potential Client is not permitted to use or edit those parts without Hackabu's consent due to the Austrian Copyright Act alone.
3.4 Furthermore, the concept contains ideas that are relevant to advertising which do not reach the level of originality required for copyright protection and are thus not protected by the Austrian Copyright Act. Such ideas are generated at the beginning of every creative process and may be defined as the creative spark for all subsequent work results and, thus, as the origin of a marketing strategy. Accordingly, those elements of the concept are protected which are unique and characterize the marketing strategy. For the purpose of this agreement ideas shall in particular mean advertising slogans, advertising texts, graphics and illustrations, advertising means etc., even if they do not reach the level of originality required for copyright protection.
3.5 The potential Client undertakes not to exploit or have exploited commercially and/or use or have used the creative advertising ideas which Hackabu presented as part of the concept in any context other than the corrective of a principal contract to be concluded at a later time.
3.6 If the potential Client is of the opinion that Hackabu presented ideas to him which he already had before the presentation, he shall notify Hackabu thereof via e-mail within 14 days of the day of the presentation and include means of evidence which allow a chronological allocation.
3.7 Otherwise the Parties will assume that Hackabu has presented an idea to the potential Client which is new to him. If the Client uses the idea, it has to be assumed that Hackabu received remuneration therefor.
3.8 The potential Client may be released from his duties under this Clause if he pays a reasonable compensation plus possible VAT, if applicable. Such release shall become effective only after receipt of the full compensation payment by Hackabu.
4. Scope of services; Order processing; Client's duties to co-operate
4.1 The scope of the services to be rendered shall be based on the specifications of Hackabu Agreement or Hackabu's acknowledgment of order, if any, and the briefing report, if any ("Offer Documents"). Subsequent modifications of the services shall be subject to Hackabu's written confirmation. When executing the order Hackabu shall be free in its discretion within the framework specified by the Client.
4.2 All services of Hackabu (including but not limited to all preliminary designs, sketches, final drawings, proofs, blueprints, copies, colored prints and electronic files) shall be checked by the Client and released within three working days of receipt by the Client. If they are not released within that period, they shall be deemed approved by the Client. After that period has expired with no reply from the Client they shall be deemed accepted by the same.
4.3 The Client shall make accessible to Hackabu completely and in time all information and documents required for rendering the service. The Client shall notify Hackabu of all circumstances that are relevant to execution of the order, even if they become known only in the course of execution of the order. The Client shall bear the costs incurred due to the fact that work has to be done again by Hackabu or is delayed because of his incorrect, incomplete or subsequently modified specifications.
4.4 In addition, the Client is obliged to clear the documents made available by him for execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the Client, Hackabu shall not be liable (at least as regards the relationship between Hackabu and the Client) for an infringement of such rights of third parties by documents made available by the Client. If Hackabu is held liable for an infringement of such rights, the Client shall indemnify and hold Hackabu harmless and shall compensate Hackabu for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The Client undertakes to support Hackabu in defending claims of third parties, if any. For this purpose the Client shall provide Hackabu with all documents without request.
4.5 The customer is obligated to comply with all applicable statutory provisions. This includes in particular the DSGVO, the DSG, the eCommerce Act and the TKG. The customer shall indemnify and hold Hackabu harmless in the event of a claim for breach for which the customer is responsible. A legal examination of the project undertaken by Hackabu is the sole responsibility of the customer. Any liability of Hackabu in this respect is excluded.
5. External services; Commissioning of third parties
5.1 Hackabu shall be entitled at its own discretion to render the services itself, to employ expert third parties as agents [Erfüllungsgehilfen as defined by Section 1313a of the Austrian General Civil Code [ABGB] and/or to commission a third party to render such services ("External Service").
5.2 Commissioning of third parties in connection with an External Service shall be done either in Hackabu's own name or in the name of the Client. Hackabu shall select the relevant third party with care and ensure that it is appropriately qualified.
5.3 The Client shall assume obligations vis-à-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the contract with Hackabu for cause.
6.1 Hackabu shall endeavor to meet agreed deadlines for fulfillment (completion). Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by Hackabu in writing.
6.2 If the delivery/service of Hackabu is delayed for reasons for which Hackabu is not responsible, such as, e.g. events of force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays continue for more than two months, the Client and Hackabu shall be entitled to rescind the contract.
6.3 If Hackabu is in default, the Client may only rescind the contract after having granted Hackabu a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the Client for damages on the ground of non-performance or default shall be excluded, unless intent or gross negligence can be proved.
7. Early termination
7.1 Hackabu shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where
(a) provision of a service becomes impossible for reasons for which the Client is responsible or is further delayed even though the Client was granted a grace period of 14 days;
(b) the Client continues to violate material obligations under this contract, such as, e.g. the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days;
(c) legitimate concerns exist regarding the Client's credit standing and, upon Hackabu's request, the Client fails to make advance payments or to furnish suitable security prior to provision of the service by Hackabu.
7.2 The Client shall be entitled to terminate the contract for cause without having to grant a grace period. A cause shall be, in particular, where Hackabu repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.
8.1 Unless otherwise agreed Hackabu's entitlement to fees shall arise for any specific service once the same has been rendered. Hackabu shall be entitled to ask for advances to cover its expenses.
8.2 The fees shall be stated as net fees in EUR plus statutory value added tax. If in a specific case no agreement on fees has been concluded, Hackabu shall be entitled to fees at market rates for the services rendered and for transfer of copyrights and marks.
8.3 All services of Hackabu which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by Hackabu shall be reimbursed by the Client.
8.4 Cost estimates provided by Hackabu shall be non-binding. If it becomes clear that the actual costs will exceed Hackabu's written cost estimate by more than 15 per cent, Hackabu shall advise the Client of such higher costs. The increase in costs shall be deemed accepted by the Client if the Client does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the Client from the beginning.
8.5 If the Client unilaterally modifies or cancels work ordered without involving Hackabu and notwithstanding other regular support from the same, the Client shall pay Hackabu for the services provided by then according to the agreement on fees and shall reimburse all costs incurred. Unless work is cancelled on the ground of a breach of Hackabu's duties by gross negligence or willful intent, the Client shall, in addition, pay Hackabu the total fee (commission) agreed for that contract, and the allowance [Anrechnungsvergütung] as defined in Section 1168 of the Austrian Civil Code [ABGB] shall be excluded. Furthermore, Hackabu shall be indemnified and held harmless from and against any third-party claims, in particular of Hackabu's contractors. By payment of the fees the Client shall acquire no rights to use work already carried out; concepts, drafts and other documents which were not implemented shall rather be returned to Hackabu without delay.
9. Payment; Retention of title
9.1 The fee shall be due for payment immediately upon receipt of the invoice without any deductions, unless special payment terms are agreed in writing on a case-by-case basis. The same shall apply to all cash and other expenses charged. Hackabu shall retain title to the goods delivered by it until full payment of the fee including all ancillary liabilities.
9.2 In the case of payment default of the Client statutory default interest according to § 456 UGB I at the rate applicable to business-to-business transactions will be charged. In the case of default the Client also undertakes to reimburse Hackabu the dunning and collection charges incurred to the extent they are necessary for appropriate pursuit of the claim. This shall in any case include the costs of two dunning letters at the market fee of currently at least EUR 20 per letter plus those of one dunning letter of a lawyer who has been instructed to collect the receivables outstanding. Assertion of further rights and claims shall remain unaffected.
9.3 If the Client is in default of payment, Hackabu may call for immediate payment of services or partial services rendered under different contracts concluded with the Client.
9.4 Furthermore, Hackabu is not obliged to render other services until payment of the amount outstanding (right to withhold services). The obligation to pay the fees shall not be affected.
9.5 If payment by installments has been agreed, Hackabu reserves the right to demand immediate payment of the total debt outstanding if installments or ancillary claims are not paid in time (acceleration clause).
9.6 A set-off of the fee charged by Hackabu by the customer with counterclaims of any kind whatsoever is excluded.
10. Title and copyright
10.1 Hackabu shall retain title to all services of Hackabu, including services in connection with presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides), including parts thereof, as well as the individual workpieces and original designs and Hackabu may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees the Client shall acquire the right to use the services for the designated purpose agreed. Unless otherwise agreed the Client shall, however, use Hackabu's services exclusively in Austria. Acquisition of rights to use and exploit Hackabu's services shall in any case be subject to full payment of the fees charged by Hackabu for the same. If the Client uses Hackabu's services already prior to that time, such use shall be based on a loan relationship that may be revoked at any time.
10.2 Modifications and/or editing of services of Hackabu, including but not limited to further development of the same by the Client or third parties working for the Client, shall only be permitted with the express consent of Hackabu and, to the extent that services are protected by copyright, of the author. The release of files, data carriers and data with the source code is thus expressly not part of the contract. Hackabu is not obliged to release these, i.e. without contractual assignment of the rights of use also for "electronic work," the client has no legal claim to it.
10.3 Use of Hackabu's services beyond the originally agreed purpose and scope of use shall be subject to Hackabu's consent irrespective of whether such service is protected by copyright or not. In consideration thereof Hackabu and the author shall be entitled to a separate reasonable fee.
10.4 After expiration of Hackabu Agreement use of services of Hackabu and/or advertising means for which Hackabu developed concepts or designs shall also be subject to Hackabu's consent irrespective of whether the service is protected by copyright or not.
10.5 In the first year after termination of the contract Hackabu shall be entitled to the full Hackabu fees agreed in the expired contract for any use described in paragraph 4. In the second and third year after expiration of the contract Hackabu shall only be entitled to half or one fourth of the consideration agreed in the contract. From the fourth year after termination of the contract no Hackabu fees shall be payable.
10.6 The Client shall be liable to Hackabu for any unlawful use in the amount of twice the reasonable fees for such use.
11. Identification marks
11.1 Hackabu shall be entitled to make reference to Hackabu and the author, if applicable, on all advertising means and in any advertising and promotion measures, without the Client being entitled to any payment in this respect.
11.2 Hackabu shall be entitled to make reference to its current or former business relationship with the Client on its own advertising media, including but not limited to its website, by referring to the Client's business name and business logo, with the Client having the right to revoke his consent in writing at any time.
12.1 The Client shall notify any defects immediately and in any case within eight days of delivery/provision of the service by Hackabu and hidden defects not later than eight days after they were identified in writing including a description of the defect; otherwise the service shall be deemed accepted. In that case assertion of any warranty claims or claims for damages as well as the right to assert claims on account of mistake shall be excluded.
12.2 In the case of a justified and timely notification of defects the Client shall be entitled to improvement or replacement of the delive delivery/service by Hackabu. Hackabu shall repair the defects within a reasonable period of time and the Client shall enable Hackabu to take all measures which are necessary for examination and repair of the defects. Hackabu shall be entitled to refuse improvement of the service if such improvement is impossible or if Hackabu were to incur disproportionately high costs. In that case the Client shall be entitled to cancel the contract or get a fee reduction as provided for by law. In the case of improvement the Client shall send the defective (physical) item at his cost.
12.3 The Client shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. Hackabu is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the Client, if any, Hackabu shall not be liable for lawfulness of contents if they were advised or accepted by the Client.
12.4 The warranty period shall be six months as of delivery/service. The right of recourse to Hackabu as defined in Section 933 b (1) ABGB shall be forfeited one year after delivery/service. The Client shall not be entitled to withhold payments on the ground of complaints. The presumption rule [Vermutungsregel] of Section 924 ABGB shall be excluded.
13. Liability and product liability
13.1 In cases of slight negligence liability of Hackabu and its employees, contractors or other agents [translator's note: Erfüllungsgehilfen as defined by Section 1313a ABGB for damage to property or pecuniary loss suffered by the Client shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that Hackabu's liability is excluded or limited this shall also apply to personal liability of its employees, contractors or other involved agents.
13.2 Any liability of Hackabu for claims asserted vis-à-vis the Client on the ground of services rendered by Hackabu (e.g. advertising and promotion measures) shall be expressly excluded, provided that Hackabu complied with its duty to inform or if it was unable to see such a duty, even due to slight negligence. Hackabu shall, in particular, not be liable for costs of legal proceedings, lawyer's fees of the Client or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Client shall indemnify and hold harmless Hackabu in this respect.
13.3 Claims of the Client for damages shall be forfeited six months after knowledge of the damage and in any case three years after Hackabu's infringement. Claims for damages shall be limited to the net contract value.
14. Applicable law
The Agreement and all mutual rights and duties resulting therefrom as well as any claims between Hackabu and the Client shall be subject to Austrian substantive law, and its conflicts of laws rules and UN Sales Law shall be excluded, even if the order is carried out abroad.
15. Place of performance and place of jurisdiction
15.1 The place of performance shall be the registered office of Hackabu. In the case that goods are shipped the risk shall pass to the Client once Hackabu has delivered the goods to the carrier chosen by it.
15.2 The agreed place of jurisdiction for all legal disputes arising between Hackabu and Client in connection with this contractual relationship shall be the court having jurisdiction over the subject-matter and Hackabu's registered office. Notwithstanding the foregoing Hackabu shall be entitled to sue the Client at his general place of jurisdiction.