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Our T&C

General terms and conditions

1. Validity, conclusion of contract

1.1 “NHK Solutions” (hereinafter referred to as “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the agency and the customer, even if they are not expressly referred to.

1.2 Any terms and conditions of the customer, even if known, are not accepted, unless otherwise expressly agreed in writing in individual cases. The Agency expressly objects to any General Terms and Conditions of the Customer. No further objection to the customer’s GTC by the agency is required.

1.3 Amendments to the GTC shall be notified to the Customer and shall be deemed to be agreed if the Customer does not object to the amended GTC in writing within 14 days; the Customer shall be expressly informed of the significance of silence in the notification.

1.4 The version valid at the time of the conclusion of the contract shall be authoritative in each case. Deviations from these as well as other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.

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 the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.

1.6 The Agency’s offers are subject to change and non-binding. Furthermore, an offer made by the Agency is valid for up to 45 days after it is sent.

2. Performance and testing

2.1. The subject of an order may be:

  • Development of strategic concepts
  • Market and detailed analyses
  • Acquisition of usage rights for software products
  • Participation in commissioning (changeover support)
  • (Telephone) consultation
  • Service and program maintenance
  • Search engine marketing consulting/execution
  • Social media and content marketing consulting / implementation
  • Other services in the field of e-commerce and SEO
  • Creation and management of websites and online stores

2.2. The elaboration of individual organizational concepts and programs is carried out according to the type and scope of the binding information, documents and aids provided in full by the client. This also includes practical test data as well as test facilities to a sufficient extent, which the client provides in a timely manner, during normal working hours and at his own expense. If the customer is already working in live operation on the system provided for testing, the responsibility for backing up the live data lies with the customer.

2.3. The basis for the creation of individual programs is the written performance specification, which the Contractor shall prepare against cost calculation on the basis of the documents and information provided to it or which the Customer shall make available. This performance specification is to be checked by the client for correctness and completeness and to be marked with his approval. Change requests occurring later may result in separate appointment and price agreements.

2.4. Individually created software or program adaptations require program acceptance by the customer for the respective program package at the latest four weeks after delivery. This is confirmed in a protocol by the client. (Checking for correctness and completeness on the basis of the performance specification accepted by the Contractor by means of the test data provided under point 2.2).

If the Customer allows the period of four weeks to elapse without accepting the program, the delivered software shall be deemed to have been accepted on the end date of the said period. If the software is used in live operation by the Customer, the software shall be deemed accepted in any case. Any defects that occur, i.e. deviations from the service description agreed upon in writing, shall be sufficiently documented by the Client and reported to the Contractor, who shall endeavor to remedy the defects as quickly as possible. If there are significant defects reported in writing, which means that live operation cannot be started or continued, a new acceptance is required after the defects have been rectified. The Customer shall not be entitled to refuse acceptance of software due to immaterial defects.

2.5 Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the Contractor shall be obliged to notify the Client thereof immediately.

If the Client does not change the service description or does not create the prerequisite that execution becomes possible, the Contractor may refuse execution. If the impossibility of performance is the result of a failure on the part of the Client or a subsequent change in the specification of services by the Client, the Contractor shall be entitled to withdraw from the order. The costs and expenses incurred for the Contractor’s activities up to that point, as well as any dismantling costs, shall be reimbursed by the Client.

3. Social media and other advertising channels

Before placing the order, the agency expressly points out to the customer that the providers of “advertising channels” (e.g. Facebook, Google in the following: providers) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Accordingly, the providers are not obliged to forward content and information to the users. There is therefore a risk, which cannot be calculated by the agency, that advertisements and appearances may be removed without cause.

In the event of a complaint from another user, the providers will grant the possibility of a counterstatement, but even in this case the content will be removed immediately.

In this case, the restoration of the original, lawful state may take some time. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases an order from the customer on them.

By placing an order, the Customer expressly acknowledges that these Terms of Use (also) determine the rights and obligations of any contractual relationship. The Agency intends to execute the Client’s order to the best of its ability and to comply with the guidelines of “Social Media and Other Advertising Channels”.

However, due to the currently valid terms of use and the simple possibility of each user to claim infringements and thus achieve a removal of the content, the agency cannot guarantee that the commissioned campaign is also retrievable at all times.

4. Order Processing, Scope of Services and Customer’s Duty to Cooperate

4.1 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) shall be reviewed by the Customer and approved by the Customer within three working days of receipt by the Customer. If they are not released in time, they shall be deemed approved by the customer.

4.2 The scope of the services to be provided results from the service description in the service agreement or any order confirmation by the Agency, as well as any briefing protocol (“offer documents”). Subsequent changes to the content of the service require written confirmation by the agency. Within the framework given by the customer, the agency has freedom of design in the fulfillment of the order.

4.3 The Customer shall make available to the Agency in a timely and complete manner all information and documents required for the performance of the service. He will inform them of all circumstances that are of importance for the execution of the order, even if they only become known during the execution of the order. The customer shall bear the expenses incurred by the fact that work has to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.

4.4 The Agency has the right to process an order in phases and to invoice the services provided in this process individually.

4.5 The customer is furthermore obligated to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. The Agency shall not be liable in the case of merely slight negligence or after fulfillment of its duty to warn – at least in the internal relationship with the Customer – due to an infringement of such third-party rights by documents made available. If a claim is made against the Agency by a third party due to such an infringement, the Customer shall indemnify and hold the Agency harmless; the Customer shall compensate the Agency for all disadvantages incurred by the Agency as a result of a third party claim, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in the defense of any claims by third parties. The customer shall provide the agency with all documents for this purpose without being requested to do so.

4.6 Orders shall be executed by the Agency to the best of its knowledge and ability. The Agency cannot guarantee that it will always achieve the agreed and desired result with the work.

4.7 When offering certain services, the Agency is dependent on guidelines, rules and technology of third party providers such as -but not limited to- Google. All work in the case will be carried out according to the guidelines and rules of the third-party provider.

5. External services / commissioning of third parties

5.1 The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents for the performance of services that are the subject matter of the contract and/or to substitute such services (“Third-Party Service”).

5.2 The commissioning 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. The Agency will carefully select this third party and ensure that it has the required professional qualifications.

5.3 The customer shall enter into obligations to third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the agency agreement for good cause.

5.4 Insofar as the Agency commissions necessary or agreed third-party services, the respective contractors shall not be vicarious agents of the Agency.

6. Dates

6.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be deemed approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by the agency.

6.2 If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.

6.3 If the Agency is in default, the Customer may only withdraw from the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.

7. Concept and idea protection

If the potential client has already invited the agency to prepare a concept in advance and the agency complies with this invitation before the main contract is concluded, the following provision shall apply:

7.1 The potential customer acknowledges that the agency already provides cost-intensive preliminary services with the concept development, although he has not yet assumed any service obligations himself.

7.2 Already by the invitation and the acceptance of the invitation by the Agency, the potential Customer and the Agency enter into a contractual relationship (“Pitching Contract”). This contract is also based on the GTC.

7.3 The potential Customer undertakes to refrain from commercially exploiting or having commercially exploited or using or having used the creative advertising ideas presented by the Agency within the framework of the concept outside the corrective of a main contract to be concluded at a later date.

7.4 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential customer is not permitted to use or edit these parts without the agency’s consent, if only on the basis of copyright law.

7.5 The concept also contains ideas relevant to advertising that do not reach the level of a work and thus do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is later produced and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic character. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. shall be deemed to be an idea within the meaning of this agreement, even if they do not reach the level of a work.

7.6 If the potential Client is of the opinion that ideas were presented to him by the Agency that he had already come up with prior to the presentation, he shall notify the Agency of this by e-mail within 14 days of the day of the presentation, citing evidence that allows a temporal attribution.

7.7 In the contrary case, the Contracting Parties shall assume that the Agency has presented the potential Customer with an idea that is new for him. If the idea is used by the client, it can be assumed that the agency became meritorious in the process.

7.8 The potential customer may release himself from his obligations under this point by paying a reasonable compensation plus 20% VAT. The relief shall not take effect until the Agency has received payment of the indemnity in full.

8. Early dissolution

8.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if

a) there are justified concerns about the creditworthiness of the customer and the customer does not make advance payments at the request of the agency nor does the customer provide suitable security prior to the agency’s performance;

b) the customer continues, despite a written warning with a grace period of 14 days, to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate.
.

c) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days being set;

8.2 The customer shall be entitled to terminate the contract for good cause without granting a grace period. Good cause shall be deemed to exist in particular if the Agency continues to violate material provisions of this Agreement despite a written warning with a reasonable grace period of at least 14 days to remedy the violation.

9. Fee

9.1 Unless otherwise agreed, the Agency’s fee claim shall arise for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 3.000,- or those that extend over a longer period of time, the agency is entitled to issue interim invoices or advance invoices or to call for payments on account.

9.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in the individual case, the Agency shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law in the amount customary in the market.

9.3 Cost estimates of the Agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated by the Agency in writing by more than 15%, the Agency will 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 notice and at the same time discloses more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the Client from the outset.

9.4 All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Customer.

9.5 The Agency shall be entitled to the agreed remuneration for all work performed by the Agency which, for whatever reason, is not carried out by the Customer. The crediting provision of § 1168 ABGB is excluded. Upon payment of the fee, the customer does not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed are to be returned to the agency without delay.

10. Retention of title, payment

10.1 The Agency shall send its invoices digitally. The customer agrees to receive his invoices by email.

10.2 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the charging on of all cash expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration including all ancillary liabilities.

10.3 If payment in installments is agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (forward loss).

10.4 In the event of the Customer’s default in payment, the Agency may declare all services and partial services rendered under other contracts concluded with the Customer immediately due and payable.

10.5 In the event of default in payment by the customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal action. In any case, this shall include the costs of two reminders in the customary amount of currently at least € 20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.

10.6 Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay remuneration remains unaffected.

10.7 The Customer shall not be entitled to set off its own claims against claims of the Agency, unless the Customer’s claim has been acknowledged by the Agency in writing or has been established by a court of law.

11. Copyright and property right

11.1 All services provided by the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time – in particular 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 provided by the Agency requires in any case the full payment of the fees charged by the Agency for such services. If the customer already uses the services of the agency before this point in time, this use is based on a loan relationship that can be revoked at any time.

11.2 Modifications or adaptations of the Agency’s services, such as 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 the Agency and – insofar as the services are protected by copyright – of the author.

11.3 The Agency’s consent is required for the use of the Agency’s services that goes beyond the originally agreed purpose and scope of use – regardless of whether this service is protected by copyright. For this, the agency and the author are entitled to a separate appropriate remuneration.

11.4 For the use of the Agency’s services or advertising materials for which the Agency has prepared conceptual or design templates, the Agency’s consent shall also be required after the expiry of the Agency Contract, irrespective of whether this service is protected by copyright or not.

11.5 For uses according to par. 4., the agency is entitled to a claim to the full agency remuneration agreed in the expired contract within the first year after the end of the contract. Within the 2nd and respectively 3rd year after the expiry of the contract only half or one quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.

11.6 The Customer shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.

12. Marking

12.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising materials and in all advertising measures without the Customer being entitled to any remuneration for this.

12.2 Subject to the Customer’s written revocation, which is possible at any time, the Agency 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 by name and company logo (reference).

13. Warranty

13.1 The Customer shall report any defects in writing without delay, in any case within nine days after delivery/service by the Agency, hidden defects within nine days after detection of the same, describing the defect; otherwise the service 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.

13.2 In the event of justified and timely notification of defects, the Customer shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period of time, and the Customer shall allow the Agency to take all measures necessary to investigate and remedy the defects. The Agency shall be entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for the Agency. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In case of improvement it is incumbent on the client to carry out the transfer of the defective (physical) item at his own expense.

13.3 It shall also be incumbent on the Client to review the performance for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The agency is only obligated to perform a rough check of legal admissibility. The agency is not liable for the legal admissibility of content in the case of slight negligence or after fulfillment of any duty to warn the customer, if the content was specified or approved by the customer.

13.4 The warranty period shall be six months from delivery/service. The right of recourse against the agency pursuant to § 933b para. 1 ABGB shall expire one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 ABGB is excluded.

14. Liability and product liability

14.1 In cases of slight negligence, liability of the Agency and those of its employees, contractors or other vicarious agents (“people”) for property damage or financial loss of the Customer shall be excluded, irrespective of whether such damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The injured party must prove the existence of gross negligence. As far as the liability of the agency is excluded or limited, this also applies to the personal liability of its “people”.

14.2 Claims for damages by the Customer shall expire six months after knowledge of the damage; in any case, however, after three years after the Agency’s infringing act. Claims for damages are limited to the net order value.

14.3 Any liability of the Agency for claims made against the Customer on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has fulfilled its obligation to provide information or if such obligation was not recognizable to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the Customer’s own attorney’s fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; the Customer shall indemnify and hold the Agency harmless in this respect.

15. Data protection

The customer agrees that his personal data, namely name/company, profession, date of birth, company register 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) may be used for the purpose of fulfilling the contract and supporting the customer as well as for own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of reference to the existing or former business relationship with the customer (reference). The client 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 details listed at the top of the GTC.

16. Applicable law

The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the Customer shall be governed by Austrian substantive law, excluding its conflict of law rules and excluding the UN Convention on Contracts for the International Sale of Goods.

17. Place of performance and jurisdiction

17.1 The place of performance shall be the registered office of the Agency. In case of shipment, the risk shall pass to the customer as soon as the agency has handed over the goods to the carrier chosen by it.

17.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the Agency’s registered office. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at the Customer’s general place of jurisdiction.

17.3 Insofar as in this Agreement terms referring to natural persons are only stated in the masculine form, they shall refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.

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