© 2021 CEYOND
1. Application, Conclusion of Contract
1.1 Ceyond GmbH (hereinafter referred to as “Ceyond”) provides its services for the products 8tausender, 8tausender Base Camp, 8tausender Corporate and 7tausender, as well as individually tailored services from the above-mentioned products exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between Ceyond and the customer, even if not expressly referred to. The terms and conditions are applicable to legal relationships with entrepreneurs as well as individuals.
1.2 The version valid at the time of the conclusion of the contract shall apply. Deviations from these and other supplementary agreements with the customer shall only be effective if they are confirmed in writing by Ceyond.
1.3 Any terms and conditions of business of the customer, even if known, shall not be accepted, unless expressly agreed otherwise in writing in individual cases. Ceyond expressly rejects any terms and conditions of the customer. No further objection to the general terms and conditions of the customer by Ceyond shall be required.
1.4 The customer shall be notified of any amendments to the General Terms and Conditions and such amendments shall be deemed to have been agreed if the customer does not object to the amended General Terms and Conditions in writing within 14 days; the meaning of silence shall be expressly pointed out to the customer in the notification.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and of the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes closest to the meaning and purpose of the invalid provision.
1.6 Unless otherwise agreed in writing, the offers of Ceyond are subject to change and non-binding.
2. Social Media Channels
2.2 In order to provide the services, Ceyond requires unrestricted access to existing or newly created social media appearances/accounts. The customer shall select appropriate user names and passwords that can be used by Ceyond to process these accounts and the content to be distributed from them.
2.3 The Customer hereby expressly agrees that Ceyond may independently create and publicly distribute Posts in the name of the Customer in accordance with the underlying order previously agreed and confirmed with the Customer (see points 4 and 5).
3. Concept and Idea Protection
If the potential customer has already invited Ceyond in advance to create a concept for social media accounts and/or content and Ceyond meets this invitation before the conclusion of the main contract, the following provision shall apply:
3.1 The invitation and the acceptance of the invitation by Ceyond shall already constitute a contractual relationship between the potential customer and Ceyond (“Pitching Contract”). This contract is also based on these General Terms and Conditions.
3.2 The potential customer acknowledges that Ceyond has already made cost-intensive preliminary services during the development of the concept, even though the potential customer has not yet assumed any service obligations.
3.3 The linguistic and graphic parts of the concept are protected by copyright law, insofar as they reach the level of the work. Potential customers are not permitted to use and edit these parts without the consent of Ceyond, even on the basis of the copyright law.
3.4 Furthermore, the concept contains relevant ideas that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is produced later and thus as the origin of marketing strategies. Therefore those elements of the concept are protected which are unique and give the marketing strategy its characteristic character. In particular, keywords, texts, graphics and illustrations, advertising material, etc. are regarded as ideas in the sense of this agreement, even if they do not reach the height of a work.
3.5 The potential customer undertakes to refrain from commercially exploiting or having exploited, or using or having used or having used, these creative ideas presented by Ceyond as part of the concept outside the corrective scope of a main contract to be concluded at a later date.
3.6 If the potential customer is of the opinion that ideas presented to him by Ceyond have already come to his attention before the presentation, he shall notify Ceyond of this by e-mail within 14 days of the day of the presentation, citing evidence that allows the time of the presentation to be determined.
3.7 In the opposite case, the contracting parties shall assume that Ceyond has presented a new idea to the potential customer. If the idea is used by the customer, it shall be assumed that Ceyond has earned merit in the process.
3.8 The potential customer may release himself from his obligations under this point by paying reasonable compensation plus 20% VAT. The release shall only be effective after Ceyond has received full payment of the compensation.
4. Scope of Services, Order Processing and Customer’s Obligation to Cooperate
4.1 The scope of the services to be provided is set out in the service description, the offer or any order confirmation by Ceyond, as well as any briefing protocol (“offer documents”). Subsequent changes to the content of the services shall require written confirmation by Ceyond. Ceyond shall have the freedom to design the fulfilment of the order within the framework specified by the customer.
4.2 All services provided by Ceyond (in particular all preliminary designs, sketches, final artwork, brush proofs, blueprints, copies, colour prints and electronic files) shall be reviewed by the customer and approved by him within three working days of receipt by the customer. After this period has elapsed without any response from the customer, they shall be deemed to have been approved by the customer.
4.3 The customer shall provide Ceyond with timely and complete access to all information and documents required for the provision of the service. He shall inform them of all circumstances that are relevant to the performance of the order, even if these only become known during the performance of the order. The customer shall bear the expense incurred if work has to be repeated, additionally performed or delayed as a result of incorrect, incomplete or subsequently changed information provided by Ceyond.
4.4 The customer shall also be obliged to check the documents (photos, logos etc.) provided by him for the execution of the order for any copyrights, trademarks, labelling rights or other rights of third parties (rights clearing) and guarantees that the documents are free of rights of third parties and can therefore be used for the intended purpose. If Ceyond is to create or procure material (images, graphics, etc.) required for the provision of social media or consulting services, Ceyond may also use digital platforms such as Shutterstock or Pixabay. If the Customer only requires images/graphics that are available free of charge, such as those on Pixabay, Ceyond shall not be liable for the existence of the respective rights of use. Ceyond shall not be liable in the event of slight negligence or after fulfilment of its duty to warn – at least in the internal relationship with the customer – for any infringement of such third-party rights by documents provided. If a third party asserts a claim against Ceyond due to such a violation of rights, the customer shall indemnify and hold Ceyond harmless; the customer shall compensate Ceyond for any and all disadvantages incurred by Ceyond due to a claim asserted by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support Ceyond in defending itself against any third party claims. The customer shall provide Ceyond with all documents for this purpose without being requested to do so.
5. Third-party Services / Commissioning of Third Parties
5.1 Ceyond shall be entitled at its own discretion to perform the services itself, to make use of competent third parties as vicarious agents in the performance of the contractual services and/or to substitute such services (“External Service”).
5.2 The assignment of third parties within the scope of an external service shall be carried out either in its own name or in the name of the customer. Ceyond shall carefully select such third party and ensure that it has the necessary professional qualifications.
5.3 The customer shall assume any obligations to third parties that extend beyond the term of the contract. This shall also expressly apply in the event of termination of the contract with Ceyond for good cause.
6.1 Unless expressly agreed upon as binding, stated delivery or service deadlines are only approximate and non-binding. Binding date agreements shall be recorded in writing or confirmed in writing by Ceyond.
6.2 If the delivery/performance of services by Ceyond is delayed for reasons beyond its control, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, the service obligations shall be suspended for the duration and to the extent of the obstacle and the deadlines shall be extended accordingly. If such delays last for more than two months, the customer and Ceyond shall be entitled to withdraw from the contract.
6.3 If Ceyond is in default, the customer shall only be entitled to withdraw from the contract after having granted Ceyond a reasonable grace period of at least 14 days in writing and this grace period has expired without result. Claims for damages by the customer for non-performance or delay shall be excluded, except in cases of proven intent or gross negligence.
7. Premature Termination of Agreement
7.1 Ceyond is entitled to dissolve the contract with immediate effect for important reasons. An important reason shall be deemed to exist in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period of 14 days
b) the customer continues to violate essential obligations arising from this contract, such as payment of a due amount or cooperation obligations, despite a written warning with a grace period of 14 days.
c) there are justified doubts regarding the creditworthiness of the customer and the customer does not make advance payments or provide suitable security before performance by Ceyond at the request of Ceyond;
7.2 The customer shall be entitled to terminate the contract for good cause without notice. Good cause shall be deemed to exist in particular if Ceyond continues to breach material provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
8.1 Unless otherwise agreed, Ceyond’s fee claim shall arise for each individual service as soon as it has been provided. Ceyond shall be entitled to demand down payments to cover its expenses.
8.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, Ceyond shall be entitled to a fee at the normal market rate for the services provided and the transfer of copyright and trademark rights of use.
8.3 All services provided by Ceyond that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by Ceyond shall be reimbursed by the customer.
8.4 Cost estimates provided by Ceyond shall not be binding. If it is foreseeable that the actual costs exceed the costs estimated by Ceyond in writing by more than 50 %, Ceyond shall inform the customer of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time announce more cost-effective alternatives. In the event of a cost overrun of up to 50 %, separate notification shall not be necessary. This cost overrun is considered approved by the customer from the outset.
8.5 If the customer unilaterally modifies or cancels work commissioned without the involvement of Ceyond – without prejudice to the ongoing other support provided by Ceyond – the customer shall compensate Ceyond for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of Ceyond, the customer shall also reimburse Ceyond for the entire fee (commission) agreed for this contract, whereby the offsetting remuneration of § 1168 ABGB (Austrian Civil Code) is excluded. Furthermore, Ceyond shall be indemnified and held harmless in respect of any claims by third parties, in particular by contractors of Ceyond. Upon payment of the fee, the customer shall not acquire any rights of use for any work already performed; any concepts, drafts and other documents not executed shall be returned to Ceyond immediately.
9. Payment, Retention of Title
9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment conditions are agreed in writing in individual cases. This also applies to the further charging of all cash expenses and other expenses. Goods delivered by Ceyond shall remain the property of Ceyond until full payment of the fee, including all secondary liabilities.
9.2 If the customer is in default of payment, the statutory default interest shall apply. Furthermore, in the event of default in payment, the customer undertakes to reimburse Ceyond for any reminder and collection charges incurred, insofar as these are necessary for appropriate legal action. This shall in any case include the costs of two reminders in the usual market amount of currently at least € 20.00 per reminder as well as a reminder from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of default of payment by the customer, Ceyond shall be entitled to demand immediate payment of all services and partial services provided under other contracts concluded with the customer.
9.4 Furthermore, Ceyond shall not be obliged to provide further services until the outstanding amount has been paid (right of retention). This shall not affect the obligation to pay remuneration.
9.5 If payment in instalments has been agreed, Ceyond reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or subsidiary claims are not paid on time (loss of deadline).
9.6 The customer shall not be entitled to set off his own claims against claims of Ceyond, unless the claim of the customer has been accepted by Ceyond in writing or has been established by a court of law.
10. Ownership and Copyright
10.1 All services provided by Ceyond, including those from presentations (e.g. suggestions, ideas, sketches, preliminary designs, scribbles, final artwork, concepts), including individual parts thereof, shall remain the property of Ceyond, as well as the individual workpieces and design originals, and may be reclaimed by Ceyond at any time – especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation of services of Ceyond is in any case subject to full payment of the fees charged by Ceyond for such services. If the customer already uses the services of Ceyond before this date, this use shall be based on a loan relationship which may be revoked at any time.
10.2 Any changes or modifications to the services of Ceyond, in particular their further development by the customer or by third parties working for the customer, shall only be permitted with the express consent of Ceyond and – if the services are protected by copyright – the author.
10.3 The use of services provided by Ceyond that go beyond the originally agreed purpose and scope of use shall require the consent of Ceyond, irrespective of whether such services are protected by copyright. Ceyond and the author shall be entitled to separate and reasonable compensation for such use.
10.4 For the use of services provided by Ceyond for which Ceyond has developed conceptual or design templates, the consent of Ceyond shall also be required on expiry of the contract, irrespective of whether or not this service is protected by copyright.
10.5 The customer shall be liable to Ceyond for any unlawful use at twice the appropriate fee for such use.
11.1 Ceyond shall be entitled to refer to Ceyond and its products/services and, if applicable, to the originator in all advertising measures, without the customer being entitled to any compensation.
11.2 Subject to written revocation by the customer at any time, Ceyond shall be entitled to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its internet website with its name and company logo (reference).
12.1 The customer, if it is a company, shall notify any defects immediately, in any case within eight days after delivery/performance by Ceyond, hidden defects within eight days after detection of the same, in writing with a description of the defect; otherwise the performance shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded. The statutory rights and obligations apply to private customers.
12.2 In the event of justified and timely notification of defects, the customer shall be entitled to have the delivery/service improved or replaced by Ceyond. Ceyond shall remedy the defects within a reasonable period of time, whereby the customer shall enable Ceyond to carry out all measures necessary for inspection and remedy of the defects. Ceyond shall have the right to refuse to improve the performance if this is impossible or involves disproportionately high costs for Ceyond. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be incumbent on the customer to transfer the defective (physical) item at his own expense.
12.3 It is also the responsibility of the enterprise customer to check the performance for its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. Ceyond is only obliged to carry out a rough examination of the legal admissibility. Ceyond shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilment of any warning obligation to the customer if such content was specified or approved by the customer.
12.4 The warranty period vis-à-vis corporate customers shall be six months from delivery/service. The right of recourse against Ceyond pursuant to § 933b para. 1 ABGB (Austrian Civil Code) shall expire one year after delivery/performance. The customer shall not be entitled to withhold payments due to defects. The presumption provision of § 924 ABGB is excluded. The statutory rights and obligations apply to private customers.
13. Liability and Product Liability
13.1 In cases of slight negligence, any liability of Ceyond and its employees, contractors or other vicarious agents (“People”) for property damage or financial losses of the customer shall be excluded, regardless of whether such losses are direct or indirect, lost profits or consequential damages, damages due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. Insofar as the liability of Ceyond is excluded or limited, this also applies to the personal liability of its “people”.
13.2 Any liability of Ceyond for claims made against the customer on the basis of the service provided by Ceyond is expressly excluded if Ceyond has fulfilled its obligation to provide information or if such information was not recognisable to it, whereby slight negligence shall not be prejudicial. In particular, Ceyond shall not be liable for legal costs, the customer’s own legal fees or the costs of publication of judgements or for any claims for damages or other claims by third parties; the customer shall indemnify and hold Ceyond harmless in this respect.
13.3 Any claims for damages by the customer shall expire six months after the customer becomes aware of the damage, but in any event after three years from the date of the infringement by Ceyond. Claims for damages shall be limited to the net order value.
14. Data Protection
The customer agrees that his personal data, namely name/company name, profession, date of birth, company registration number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card data, VAT number) for the purpose of fulfilling the contract and customer care as well as for our own advertising purposes, e.g. for the sending of offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or former business relationship with the customer (reference reference), can be determined, stored and processed automatically.
The customer agrees that electronic mail may be sent to him for advertising purposes until revoked.
This consent can be revoked at any time in writing by e-mail, fax or letter to the contact data given in the header of the GTC.
15 Applicable Law
The contract and all mutual rights and obligations and claims between Ceyond and the customer are subject to Austrian substantive law, excluding its referral norms and excluding the UN Convention on Contracts for the International Sale of Goods.
16. Place of Performance and Jurisdiction
16.1 The place of performance is the registered office of Ceyond.
16.2 The place of jurisdiction for all legal disputes arising between Ceyond and the customer in connection with this contractual relationship shall be the court having jurisdiction over the registered office of Ceyond. Notwithstanding this, Ceyond shall be entitled to sue the customer at its general place of jurisdiction.
16.3 Insofar as this contract refers to natural persons only in the masculine form, it shall apply equally to women and men and to persons without sex. When applying the designation to specific natural persons, the respective gender-specific form shall be used.