Privacy Policy

Die Fee Agentur GmbH

GENERAL TERMS AND CONDITIONS

I. Scope

1. These General Terms and Conditions (hereinafter referred to as the ‘GTC’) govern the contractual relationship between ‘Die “Fee” Agentur GmbH’, FN 613134v (hereinafter “Fee”) and its customers (hereinafter “Contracting Party”). These GTC apply to all services and deliveries offered and to be provided by “Fee”, as well as to all ancillary transactions and other services related thereto.

2. These GTC apply regardless of whether ‘Fee’ provides the services itself or has them provided by a commissioned ‘third party’.

3. Any contractual or purchasing terms and conditions of the Contracting Party that conflict with or deviate from these GTC shall not be accepted by ‘Fee’ and shall be deemed not to have been agreed. This shall also apply even if ‘Fee’ does not expressly object to them. Acts of performance by “Fee” shall in no way constitute consent to the contracting party’s terms and conditions of contract or purchase that conflict with or deviate from these General Terms and Conditions. In case of doubt, “Fee’s” General Terms and Conditions shall in any event prevail.

4. Any deviating terms and conditions, verbal side agreements, amendments or additions to these terms and conditions and their annexes or appendices require a written agreement between both contracting parties. This also applies to any waiver of this formal requirement.

5. These General Terms and Conditions apply within the framework of an ongoing business relationship.

II. Cost Estimates, Preliminary Work, Quotations

1. Cost estimates are generally subject to a charge and are invoiced at an hourly rate of EUR 150.00 net. Any fee paid for a cost estimate will be credited if an order is placed on the basis of that estimate.

1.1. Cost estimates are, as a rule, non-binding. The cost estimate is drawn up to the best of our professional knowledge; however, no guarantee is given as to its accuracy.

1.2. Should the cost exceed the estimate by more than 15 per cent after the order has been placed, ‘Fee’ shall inform the contracting party of this without delay. The cost overrun shall be deemed to have been approved by the contracting party if the contracting party does not object in writing within three days of being notified and, at the same time, does not propose more cost-effective alternatives. In the case of an unavoidable cost overrun of up to 15%, no separate notification is required and these costs may be invoiced without further ado.

2.3. The contracting party shall not disclose presentation materials to third parties, nor shall it publish, reproduce, distribute or otherwise exploit such materials, without the express consent of “Fee”. The Contracting Party undertakes to pay “Fee”, for each individual objective breach of these obligations of non-infringement, excluding the defence of continuing conduct, a contractual penalty of €10,000.00, deemed reasonable by both parties and payable regardless of fault. This shall not affect ‘Fee’s’ right to claim compensation for any further damage arising from the breach and for any other claims. Any contractual penalty paid shall not be set off against ‘Fee’s’ further claims for damages arising from the breach of this agreement.

3. Offers made by ‘Fee’ are subject to change and non-binding. By placing an order, the contracting party makes a binding offer to enter into a contract. ‘Fee’ is entitled to reject the contracting party’s order or commission within 14 days of receipt without giving reasons.

III. Contractual Relationship, Order, Conclusion of Contract, Prices

1. ‘Fee’ shall enter into a written agreement with the contracting party on the basis of these General Terms and Conditions, or shall receive a corresponding order for the provision of (services). The scope of the (service) work to be performed by ‘Fee’ and the resulting remuneration for ‘Fee’ shall be determined by the contracting party’s order, the service description or the details set out in the written agreement. The contracting party is obliged to pay the agreed fees for each service utilised. Any subsequent changes to the scope of services must in any event be made in writing.

2. The start and end of the contractual relationship are set out in the written agreement or the order.

2.1. The right to terminate the contract without notice for good cause remains unaffected. The following, in particular, are considered to be good cause justifying termination without notice:

− if bankruptcy or other insolvency proceedings are applied for, commenced or dismissed due to lack of assets against the contracting party

− in the event of breaches of contract by the other contracting party which have not been remedied despite a formal warning and within a grace period set at the same time.

2.2. Any notice of termination or declaration of termination for good cause must be sent by registered post with acknowledgement of receipt or by courier, so that receipt can be verified.

7.4. The fees agreed in the written agreement or the order, in particular for ongoing services, are index-linked on the basis of the Austrian Consumer Price Index (CPI 2020) or any benchmark replacing it. The index figure serving as the basis for calculating the index-linking is that of the month in which the contract was concluded; in the event of subsequent changes, it is the index figure that formed the basis for the most recent change in each instance. ‘Fee’ is entitled to claim any increases resulting from the index-linking without delay. Any waiver of the application of the index-linking clause must be expressly stated in writing. The contracting parties regard the legal validity of this index-linking agreement as a fundamental basis for the conclusion and maintenance of the agreement concluded in writing.

IV. Order Processing, Obligations of the Contracting Party to Cooperate

1. The selection of the employee who is to perform the services covered by the contract is the responsibility of “Fee”. “Fee” is entitled to engage other third parties as subcontractors for the provision of the contractually agreed services, including, where applicable, individual services only. In any event, “Fee” is entitled to alter, at its sole discretion, the facilities and measures used to provide the agreed services. However, “Fee” remains the sole contractual party and point of contact for the overall service agreed with the contracting party. In the event that third parties are engaged, ‘Fee’ undertakes to select them carefully and to ensure that they possess the necessary professional qualifications.

2. Where agreements on deadlines or dates are made, these must in all cases be set out in writing. Any agreed delivery deadlines shall be adhered to where possible, but are always non-binding.

2.1. However, failure to meet deadlines shall only entitle the contracting party to assert the rights to which they are legally entitled once they have granted “Fee” a reasonable grace period of at least 14 days. This period shall commence upon receipt of a reminder letter by “Fee”.

2.2. Once the grace period has expired without result, the other party may withdraw from the contract. An obligation to pay damages on the grounds of delay shall only arise in the event of wilful misconduct or gross negligence.
2.3. Inevitable or unforeseeable events – in particular delays on the part of ‘Fee’s’ subcontractors – shall in any event release ‘Fee’ from the obligation to meet any agreed delivery date. The same shall apply if the contracting party is in default with its obligations necessary for the performance of the order (e.g. provision of documents or information). In this case, any agreed deadline shall be postponed at least by the duration of the delay. Delivery delays and cost increases arising from incorrect, incomplete or subsequently amended details and information, or from documents provided, are not attributable to ‘Fee’ and cannot result in ‘Fee’ being in default. Any additional costs resulting therefrom shall be borne by the contracting party.
3. All services provided by “Fee” must be checked by the contracting party and approved within three days. If approval is not given in good time, the services shall be deemed to have been approved by the contracting party.

4. The contracting party shall immediately provide ‘Fee’ with all information and documents necessary for the performance of the service. The contracting party shall inform ‘Fee’ of all matters relevant to the performance of the contract, even if these circumstances only become known during the performance of the contract. The contracting party shall bear the costs arising from any work that ‘Fee’ is required to supplement, repeat or delay as a result of the contracting party’s incorrect, incomplete or subsequently amended information.

5. Where the contracting party provides ‘Fee’ with documents for the performance of the assignment, it is obliged to check these for any existing copyright, trade mark rights or other third-party rights. ‘Fee’ shall not be liable for any infringement of such rights. In the event that ‘Fee’ is held liable for such an infringement, the contracting party shall, in any event, indemnify and hold ‘Fee’ harmless and shall compensate ‘Fee’ for all losses incurred by ‘Fee’ as a result of claims by third parties.

V. Deployment of Staff

1. ‘Fee’ shall provide its services using its own, professionally qualified staff or authorised subcontractors (Section IV.1.). The selection of the personnel deployed and their replacement at any time by other personnel of equivalent calibre is the sole responsibility of ‘Fee’.

2. The personnel deployed are under the management and supervision of ‘Fee’ (Operations Management). The contracting party shall address any requests or instructions regarding the course of operations exclusively to ‘Fee’s’ Operations Management; the contracting party has no right to issue instructions to individual members of staff deployed.

3. The start date, duration and location of the respective assignment shall be determined exclusively by the separately concluded agreement or order.

8.2. Any claim for damages against “Fee” shall lapse if the contracting party fails to notify “Fee” of the damage in writing without delay and, in the event that “Fee” rejects liability, fails to pursue the claim in court within six months. This shall apply mutatis mutandis to the assertion of warranty claims.

9. “Fee” is only obliged to ensure that the workers possess specific qualifications if this is expressly stated in the written agreement or in the order.

10. The workers shall wear the work clothing specified in the agreement. The contracting party agrees that the workers may attach a badge to their outer clothing identifying ‘Fee’.

11. ‘Fee’s’ workers are not authorised to make declarations of intent or knowledge on behalf of the contracting party, nor are they authorised to collect payments.

VI. Payment and Late Payment

1. Unless otherwise agreed in individual cases, ‘Fee’ is entitled to payment upon performance of the contractual service. All deliveries of goods and other services provided by “Fee” are, as a general rule, payable net, immediately and without any deduction upon receipt of the invoice. Discounts always require a separate written agreement and are only recognised within the scope of such an agreement. Payments by the contracting party shall only be deemed to have been made upon receipt in “Fee’s” business account. With regard to individual customers, ‘Fee’ reserves the right to amend the terms of payment. ‘Fee’ is entitled to demand advance payments to cover its costs and, in particular, to insist on payment in advance from new customers.

2. If the contracting party is in default of an agreed (partial) payment or other performance, irrespective of fault, ‘Fee’ may, without precluding compensation for further damages, insist on performance of the contract and, at the same time

2.1. suspend the fulfilment of its obligations until the outstanding payment has been made;

2.2. declare the entire outstanding purchase price due and payable;

2.3. declare its withdrawal from the contract, subject to the granting of a reasonable grace period, even if the contract has already been partially fulfilled.

2.4. ‘Fee’ shall be released from all further obligations to perform and deliver – without prejudice to compensation for further damages – and shall be entitled to withhold any outstanding deliveries or services and to demand advance payments or security, or to withdraw from the contract after setting a reasonable grace period;
2.5. Interest on arrears at a rate of 1.5 per cent per month shall be deemed to have been agreed without the need for a formal notice of default, and ‘Fee’ shall be entitled to charge compound interest from the date of handover of the goods;
2.6. Any cash discount agreements shall cease to apply in respect of all (partial) payments to be made;
2.7. The contracting party undertakes to reimburse “Fee” for all costs, expenses and out-of-pocket costs incurred by ‘Fee’ in pursuing its legitimate claims, in particular the standard costs of engaging a licensed debt collection agency, up to the maximum amounts specified in the Regulation of the Federal Ministry of Economic Affairs (BMwA), Federal Law Gazette 1996/141, as amended. Where ‘Fee’ handles the debt collection process itself, the contracting party undertakes to pay a sum of €15 for each reminder issued, as well as a sum of €5 per half-year for maintaining a record of the debt in the debt collection system;

VII. Withdrawal from the Contract

1. In the event of default in acceptance or other compelling reasons, such as, in particular, the contractual partner’s bankruptcy or the dismissal of a bankruptcy petition due to lack of assets, as well as in the event of default in payment by the contractual partner, including in respect of partial payments, ‘Fee’ shall be entitled to withdraw from the contract, provided that it has not yet been fully performed by both parties.

2. A delay in the performance of an obligation under a contract which, from an economic point of view, would not have been concluded without the conclusion of another contract, entitles ‘Fee’ to withdraw from both contracts.

3. If partial deliveries have been agreed and the contracting party is in default of payment for a partial delivery, ‘Fee’ may declare its withdrawal both in respect of the partial delivery concerned and in respect of all outstanding obligations.

4. ‘Fee’s’ withdrawal entails the complete reversal of the services rendered.

4.1. ‘Fee’ is entitled, at its discretion, to claim either full compensation for damages or a lump-sum compensation amounting to 30 per cent of the gross invoice amount, subject to any further damages.

4.2. In particular, ‘Fee’ is entitled to demand the return of goods already delivered at the contracting party’s expense and risk, whereby any depreciation in the value of the goods that has occurred in the meantime shall be borne by the contracting party.

4.3. Finished and semi-finished goods which have not yet been delivered may be made available to the contracting party at the latter’s expense and risk, subject to payment of the proportionate sale price; in the event of a delay in collection, such goods may be stored in the company’s own or rented storage facilities at the contracting party’s expense and risk. At the same time, “Fee” shall be released from any further contractual obligations.
5. If the contracting party withdraws from the contract – without being entitled to do so – or seeks its rescission, ‘Fee’ shall have the option of insisting on performance of the contract or agreeing to its rescission. In the latter case, the contracting party shall be obliged, at ‘Fee’s’ discretion, to pay all external costs incurred and a lump-sum compensation
− amounting to 30 per cent of the gross invoice amount in the event of termination of the contract up to 30 days before the project start date
− amounting to 50 per cent of the gross invoice amount in the event of termination of the contract between 29 and 15 days before the project start date
− amounting to 100 per cent of the gross invoice amount in the event of cancellation of the contract from 14 days before the start of the project
or to pay the actual loss incurred.

6. In the case of distance contracts (Sections 5a et seq. of the Consumer Protection Act), the consumer may withdraw from the contract within 14 days. The period begins on the day the goods are received by the consumer or, in the case of services, on the day the contract is concluded. It is sufficient to send the notice of withdrawal within this period by registered post. If the consumer withdraws from the contract in accordance with this provision, they must bear the costs of returning the goods. Withdrawal is not possible in the case of contracts or orders for goods that have been manufactured to the contracting party’s specific requirements or clearly tailored to their personal needs (e.g. made-to-measure goods, personalisation). If, at the consumer’s request, ‘Fee’ has commenced provision of its (service) performance during the withdrawal period, a reasonable amount shall be payable, corresponding to the proportion of the (service) performance already provided up to the time the right of withdrawal is exercised, in comparison with the total scope of the services provided for in the contract.

VIII. Retention of title, assignment of claims

1. All goods sold are supplied by ‘Fee’ subject to retention of title, and ‘Fee’ reserves the sole right of ownership of the goods until the contracting party has fulfilled all its obligations in full.

2. The contracting party must comply with the necessary formal requirements to safeguard the retention of title, in particular by protecting the goods subject to retention of title from depreciation and by taking out adequate insurance at its own expense against fire, burglary, theft and water damage.

3. For as long as the retention of title remains in force, the contracting party may not dispose of the purchased goods; in particular, they may not sell, pledge, assign as security, give away or lend them, nor may they contractually grant a third party the right to use them.

4. The contracting party must treat the purchased item with the care expected of a prudent businessman and bears the full risk for the goods subject to retention of title, in particular the risk of destruction, loss or deterioration.

5. In the event of attachment or any other claim by third parties, the contracting party is obliged to assert ‘Fee’s’ right of ownership and to notify ‘Fee’ immediately in writing.

6.2. If the contracting party is in default with its payments to “Fee”, the proceeds from sales received by it must be set aside, and the contracting party shall hold these solely on behalf of “Fee”. Any claims against an insurer are hereby assigned to “Fee” within the limits set out in Section 15 of the Insurance Contracts Act.

6.3. Claims against ‘Fee’ may not be assigned without express written consent.

7. The assertion of the retention of title in the event of insolvency does not require a prior notice of withdrawal.

IX. Grant of Rights, Attribution

1. All services provided by ‘Fee’, including those arising from presentations (e.g. suggestions, ideas, sketches, draft texts, concepts, etc.), including individual parts thereof, shall, like the individual workpieces, remain the property of ‘Fee’ for an indefinite period and may be reclaimed at any time – in particular upon termination of the contractual relationship or the collaboration with the contracting party.

2. Only upon full fulfilment of all its obligations shall the contracting party acquire the non-exclusive, non-transferable, non-sublicensable right – limited to the term of the respective contract and to the territory of Austria – to use these services in their unaltered form, for the agreed purpose and within the agreed scope of use.

3. The use of ‘Fee’s’ services beyond the originally agreed purpose and scope of use requires the express written consent of ‘Fee’, irrespective of whether such services are protected by copyright. ‘Fee’ and the copyright holder shall be entitled to separate, reasonable remuneration for this.

4. Modifications to “Fee”’s services – in particular their further development by the contracting party or by third parties acting on its behalf – are only permitted with the express written consent of “Fee” and – insofar as the services are protected by copyright – of the a

5. The use of services provided by “Fee” or of promotional materials for which “Fee” has developed conceptual or design templates also requires “Fee”’s consent following the expiry of the underlying written agreement – irrespective of whether such services are protected by copyright or not.

6. “Fee” is entitled to refer to “Fee” and, where applicable, to the author on all advertising materials and in all advertising campaigns, without the contracting party being entitled to any remuneration in respect thereof. Subject to the contracting party’s right to revoke this in writing at any time, “Fee” is entitled to refer to the existing business relationship with the contracting party on its own advertising media, and in particular on its website, by name and company logo.

X. Data Protection, Change of Address, Plans and Documents

1. ‘Fee’ complies with data protection regulations, in particular the Data Protection Act (Federal Act on the Protection of Natural Persons with regard to the Processing of Personal Data (BGBl I 120/2017, as amended – DSG)) and the EU General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data – GDPR)), as well as the Telecommunications Act (Federal Law Gazette I 70/2003, as amended – TKG) or any statutory provisions replacing it. The data provided by the contracting party shall be processed by ‘Fee’ for the purpose of conducting business.

2. For the purposes of data protection, set cards and information relating to ‘Fee’s’ staff must be treated as strictly confidential and must not be disclosed to third parties.

3. The contracting party grants its consent, which may be revoked at any time, for all personal data to be stored and processed by ‘Fee’ in an automated manner in fulfilment of the contractual relationship, in accordance with the provisions of the currently applicable version of the Telecommunications Act, including any successor legislation, in conjunction with the Data Protection Act, and that such data may be used by ‘Fee’ for the purposes of further development, needs analysis, advising the respective contracting party, improving proposed solutions and offers, as well as for ‘Fee’s’ direct marketing campaigns.

3.1. The contracting party further agrees, until further notice, to receive advertising and information about ‘Fee’s’ products and services by email. The contracting party’s data, including their name and email address, will remain exclusively with ‘Fee’. The contracting party may withdraw this consent at any time. ‘Fee’ will provide the contracting party with the option to opt out of receiving further messages in every promotional email.
3.2. Should a third party unlawfully succeed in gaining control of, or in continuing to use, the Contracting Party’s data stored by “Fee”, “Fee” shall only be liable to the Contracting Party in the event of wilful misconduct or gross negligence.
4. The contracting party gives their consent and grants “Fee” the unrestricted and irrevocable right and permission to publish, distribute, exhibit or otherwise use any photographs and video recordings created by “Fee” in the course of fulfilling the contract, in particular for communication on social media (LinkedIn, Facebook, Instagram, YouTube).

5. The contracting party is obliged to notify ‘Fee’ of any changes to their residential or business address until the legal transaction covered by the contract has been fully performed by both parties. If such notification is not provided, communications shall be deemed to have been received even if they are sent to the last address provided.
6. All information contained in ‘Fee’s’ documents regarding weights, dimensions, prices, technical data, commercial details, etc. shall only be binding if expressly referred to in the order confirmation and incorporated into the contract.
7. The contracting party is obliged to verify the information contained in the documents for accuracy, feasibility and completeness. Any deficiencies in accuracy, feasibility or completeness identified by the contracting party must be notified to ‘Fee’ in writing without delay, and in any event before the service to be provided is carried out, failing which liability shall be excluded.

XI. Transfer of Risk

1. Unless otherwise agreed, delivery shall be ‘ex works’ and the place of performance shall be the registered office of ‘Fee’.

2. The risk relating to performance and price shall in any event pass to the contracting party on the date on which the goods are notified as being ready for collection or upon handover to the first carrier to be engaged.

3. If the contracting party is in default of acceptance, the risk shall in any event pass to them. Furthermore, in the event of default of acceptance, ‘Fee’ shall be entitled to

3.1. to store the goods, for which the contracting party shall pay a storage fee of €50.00 per calendar day or part thereof

3.2. to insist on performance of the contract at the same time or, after setting a reasonable grace period, to withdraw from the contract and dispose of the goods elsewhere. In this case, a lump-sum compensation amounting to 30 per cent of the invoice amount shall be deemed agreed, although the right to claim damages in excess of this amount is not excluded.

4. The goods are delivered uninsured. The contracting party shall be solely responsible for taking out appropriate transport insurance.

XII. Warranty, Notice of Defects, Compensation, Liability

1. Where the contracting party is a trader within the meaning of the Austrian Commercial Code (UGB), the warranty period shall be 6 months, unless specific warranty periods apply to individual items supplied, and shall commence upon handover. In all other respects, the statutory warranty periods shall apply.

1.1. A defect exists if the goods delivered or the service provided do not possess the characteristics generally expected or those expressly agreed. This defect must already have existed at the time of handover or provision of the service. The reversal of the burden of proof pursuant to Section 924 of the Austrian Civil Code (ABGB) is excluded in relation to traders within the meaning of the Austrian Commercial Code (UGB).

1.2. The contracting party has ordered the goods themselves and is aware of the nature and scope of the goods. ‘Fee’ is therefore liable neither for any specific characteristic nor for the suitability of the goods/service for a particular purpose.

2. The contracting party must, in accordance with Sections 377 et seq. of the Austrian Commercial Code (UGB), inspect the goods immediately upon delivery or the service immediately upon its provision to ensure they are free from defects.

2.1. Any defects discovered in the course of this inspection must be reported to ‘Fee’ without delay, but no later than within 3 working days of their discovery, by registered letter or fax, providing as detailed a description as possible of the defects that have arisen.

2.2. Hidden defects must be reported in writing without delay, but no later than within 3 working days of their discovery, by registered letter or fax, providing as detailed a description as possible of the defects that have arisen.
2.3. If a notice of defect is not raised, or is not raised in good time, the goods shall be deemed to have been accepted. In such cases, the assertion of warranty claims or claims for damages, as well as the right to rescind the contract on the grounds of error, on account of defects, is excluded. The date of the postmark shall be decisive for determining whether the notice of defect was raised in good time.
3. Should it transpire, in the course of inspecting the goods or services subject to the complaint, that there is no defect covered by the warranty, “Fee” may charge the contracting party for the costs of the inspection based on the current hourly rate, with a minimum processing fee of €300.00.
4. The contracting party’s warranty claims shall in all cases be met by ‘Fee’ at its discretion either by replacement, repair within a reasonable period, or a price reduction. The contracting party may only seek rescission (termination of the contract) if the defect is material, cannot be remedied by replacement or repair within a reasonable period, and a price reduction is not reasonable for the contracting party.

4.1. The existence of a defect does not entitle the buyer to remedy the defect themselves or have it remedied by third parties; instead, the seller must first be given the opportunity to remedy the defect within a reasonable period.
4.2. Claims for damages by the contracting party aimed at rectifying the defect through repair or replacement may only be asserted once ‘Fee’ has fallen into default regarding the fulfilment of the warranty claims.
4.3. To have the defect rectified, the products supplied by ‘Fee’ that are the subject of the complaint must be returned to ‘Fee’ carriage paid. In any event, ‘Fee’ shall not bear any costs associated with the defect, such as assembly, disassembly, travel time, penalties or other compensation.
4.4. Work and deliveries carried out under the warranty shall not extend the original warranty period.

5. The warranty obligation applies only to defects that arise whilst the product is being used in accordance with the specified operating conditions and under normal use. It therefore does not apply, in particular, to defects caused by
− improper use contrary to the instructions supplied;
− improper repairs carried out by the contracting party or their agents;
− failure to observe the regulations governing the handling of the goods supplied;
− chemical, electrochemical or electrical influences, as well as an insufficient power supply.
− damage caused by fire, accidents, negligence, force majeure and circumstances beyond the control of ‘Fee’.
6. If the contracting party is in arrears, in whole or in part, with any obligations to be fulfilled by them, in particular payments, ‘Fee’ may reject the warranty claims asserted.
7. ‘Fee’s’ warranty obligation shall in any event expire upon the expiry of the warranty period; any further specific right of recourse on the part of the contracting party pursuant to Section 933b of the Austrian Civil Code (ABGB) on the grounds of self-fulfilled warranty obligations is excluded.
8. Any claim for damages may only be asserted within six months of becoming aware of the damage. Claims for damages are limited in amount to the respective order value excluding tax.