General terms and conditions
Status: October 2014
DI Mag. Anna Parisa Ehsani
UID ATU 69041823
W > www.aboutanna.at
T > +43 699 117 186 49
The following text to the terms and conditions is translated. The original is valid.
1 Validity, Conclusion of Contract
1.1 Anna Parisa Ehsani provides her 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 The version valid at the time of the conclusion of the contract is decisive. Deviations from these as well as other supplementary agreements with the client are only effective if they are confirmed in writing by Anna Parisa Ehsani.
1.3 Any terms and conditions of the customer, even if known, are not accepted, unless expressly agreed otherwise in writing in individual cases. Anna Parisa Ehsani explicitly disagrees with the client’s terms and conditions. A further objection against GTC of the customer by the agency is not required.
1.4 Changes of the GTC will be announced to the client and are considered as agreed, if the client does not contradict the changed GTC in writing within 14 days; the client will be explicitly informed about the meaning of silence 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 the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid one that comes closest to the meaning and purpose.
1.6 The offers of Anna Parisa Ehsani are subject to change and non-binding.
2 social media channels
3 concept and idea protection
If the potential client of Anna Parisa Ehsani has already been invited in advance to create a concept, and if the agency complies with this invitation before the conclusion of the main contract, the following regulation shall apply:
3.1 Already by the invitation and the acceptance of the invitation by Anna Parisa Ehsani, the potential client and Anna Parisa Ehsani enter into a contractual relationship (“Pitching Contract”). This contract is also based on the GTC.
3.2 The potential client acknowledges that Anna Parisa Ehsani already provides cost-intensive preliminary services with the concept development, although he has not yet assumed any service obligations himself.
3.3 The concept is subject to the protection of the copyright law in its linguistic and graphic parts, as far as these reach work height. The potential customer is not allowed to use and edit these parts without the consent of Anna Parisa Ehsani already due to the copyright law.
3.4 The concept also contains ideas relevant to advertising, which 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 igniting spark of everything that is later produced and thus as the origin of film productions and graphic works. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic imprint. In particular, character design, story, text passages, slogans, graphics and illustrations, etc. are considered as ideas in the sense of this agreement, even if they do not reach the level of a work.
3.5 The potential customer undertakes to refrain from commercially exploiting, or having exploited, or using, or having used, these creative film ideas or graphic concepts presented by Anna Parisa Ehsani within the framework of the concept, outside the corrective of a main contract to be concluded later.
3.6 If the potential customer is of the opinion that ideas were presented to him by Anna Parisa Ehsani, which he already came up with before the presentation, he has to inform Anna Parisa Ehsani about this within 14 days after the day of the presentation by e-mail, citing evidence that allows a temporal allocation.
3.7 In the contrary case, the contracting parties shall assume that Anna Parisa Ehsani has presented the potential customer with an idea that is new to him. If the idea is used by the potential customer, it shall be assumed that Anna Parisa Ehsani became meritorious in doing so.
3.8 The potential customer may release himself from his obligations under this point by paying an appropriate compensation, but at least € 2.500.- plus 20% VAT. The exemption will only come into effect after Anna Parisa Ehsani has received the payment of the compensation in full.
4 scope of services, order processing and cooperation obligations of the customer
4.1 The scope of services to be rendered results from the service description in the contract or a possible order confirmation by Anna Parisa Ehsani, as well as the milestones according to the cost estimate. Subsequent changes of the service content need a written confirmation by Anna Parisa Ehsani. Within the framework given by the client, Anna Parisa Ehsani has the freedom of design in the fulfillment of the order.
4.2 All services of Anna Parisa Ehsani (especially all preliminary drafts, sketches, final artwork, character designs, storyboards, animatics, voice drafts, copies, treatments, script excerpts, test shots and electronic files) have to be checked by the client and have to be released by him within three working days after receipt by the client. If they are not released in time, they are considered approved by the Customer.
4.3 The customer shall make available to Anna Parisa Ehsani in a timely and complete manner all information and documents necessary for the performance of the service. He will inform her of all circumstances which are of importance for the execution of the order, even if they become known only during the execution of the order. The customer shall bear the expenses that arise from the fact that work has to be repeated or is delayed as a result of his incorrect, incomplete or subsequently changed information from Anna Parisa Ehsani.
4.4 The client is furthermore obliged to check the documents provided for the execution of the order (photos, logos, audio recordings, soundtracks etc.) for possible copyrights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of rights of third parties and therefore can be used for the intended purpose. Anna Parisa Ehsani is not liable in case of only slight negligence or after fulfillment of her duty to warn – at least in the internal relationship to the client – because of an infringement of such rights of third parties by provided documents. If Anna Parisa Ehsani is claimed against by a third party because of such an infringement, the customer shall indemnify and hold Anna Parisa Ehsani harmless; he shall compensate Anna Parisa Ehsani for all disadvantages caused by a claim of a third party, especially the costs of an adequate legal representation. The customer commits himself to support Anna Parisa Ehsani in the defense of possible claims of third parties. For this purpose the customer provides Anna Parisa Ehsani with all documents without being asked.
5 External Services / Commissioning of Third Parties
5.1 Anna Parisa Ehsani is entitled at her own discretion to perform the service herself, to use competent third parties as vicarious agents for the performance of contractual services and/or to substitute such services (“third party services”). When purchasing the work of third parties Anna Parisa Ehsani proceeds to the best of her knowledge and belief, but possible complaints due to unauthorized use can never be completely excluded.
5.2 The commissioning of third parties in the context of an external service is done either in the own name or in the name of the client. Anna Parisa Ehsani will choose this third party carefully and make sure that he has the necessary professional qualification.
5.3 As far as Anna Parisa Ehsani commissions necessary or agreed external services, the respective contractors are not vicarious agents of Anna Parisa Ehsani.
5.4 The customer has to enter into obligations towards third parties, which go beyond the contract period. This applies explicitly also in case of termination of the agency contract for an important reason.
6.1 Unless expressly agreed as binding, stated delivery or service deadlines shall only be considered approximate and non-binding. Binding deadlines are to be recorded in writing or to be confirmed in writing by Anna Parisa Ehsani.
6.2 If the delivery/service of Anna Parisa Ehsani is delayed for reasons beyond her control, e.g. events of force majeure and other unforeseeable events which cannot be avoided 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 Anna Parisa Ehsani are entitled to withdraw from the contract.
6.3 If Anna Parisa Ehsani is in delay, the customer can only withdraw from the contract, after he has set Anna Parisa Ehsani a reasonable extension of time of at least 14 days in written form and this extension has expired fruitlessly. Claims for damages of the customer due to non-fulfillment or delay are excluded, except in case of proof of intent or gross negligence.
7 early dissolution
7.1 Anna Parisa Ehsani is entitled to dissolve the contract for important reasons with immediate effect. An important reason is in particular, if
a) the execution of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;
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) there are justified doubts 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;
d) For moral or political reasons that were not known at the beginning of the production.
7.2 The Client is entitled to dissolve the contract for important reasons without granting a grace period. An important reason is in particular, if Anna Parisa Ehsani continues, despite written warning with a reasonable grace period of at least 14 days to remedy the breach of contract, to violate essential provisions of this contract.
8.1 Unless otherwise agreed, Anna Parisa Ehsani’s fee claim arises for each individual service as soon as it has been rendered. Anna Parisa Ehsani is entitled to demand advance payments to cover her expenses. From an order volume with an (annual) budget of € 5.000.-, or those that extend over a longer period of time, Anna Parisa Ehsani is entitled to issue interim invoices or advance invoices, or to call for payments on account.
8.2 Anna Parisa Ehsani reserves the right to charge a lump sum of €800.- for the initial consultation, which will only be deducted from the total amount if the project is successfully completed. This amount of €800.- must be reimbursed within 14 days after invoicing of the initial meeting.
8.3 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, Anna Parisa Ehsani is entitled to a fee in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.
8.4 All services of Anna Parisa Ehsani, which are not explicitly compensated by the agreed fee, will be paid separately. All cash expenses incurred by Anna Parisa Ehsani are to be reimbursed by the client.
8.5 Cost estimates of Anna Parisa Ehsani are not binding. If it is foreseeable that the actual costs will exceed the written estimates of Anna Parisa Ehsani by more than 15%, Anna Parisa Ehsani will inform the customer about the higher costs. The cost overrun is considered to be approved by the customer, if the customer does not object in writing within three working days after this notice and at the same time announces cheaper alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun is considered as approved by the client from the beginning.
8.6 For all work of Anna Parisa Ehsani, which for whatever reason is not carried out by the client, Anna Parisa Ehsani is entitled to the agreed fee. The credit provision of § 1168 ABGB is excluded. With the payment of the fee, the client does not acquire any rights of use to work already done, if not explicitly stated in the contract; concepts, drafts and other documents that have not been executed have to be returned to Anna Parisa Ehsani immediately.
8.7 If a project is cancelled after a partial invoice has been issued and within the following milestone, the client has to hand over any outstanding partial amounts to Anna Parisa Ehsani. This partial amount is based on the total amount of the Milestone estimated in the cost estimate and must be paid within 14 days from the date of the invoice.
9 Payment, Retention of Title
9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenditures. The films and graphics delivered by Anna Parisa Ehsani remain the property of Anna Parisa Ehsani until full payment of the fee including all ancillary liabilities.
9.2 In case of default of payment by the customer, the legal default interest applies in the amount applicable to business transactions. Furthermore the customer commits himself to compensate Anna Parisa Ehsani for the arising reminder and collection costs, as far as they are necessary for the appropriate prosecution. This includes in any case the costs of two reminders in a customary amount of currently at least € 20,00 per reminder as well as a reminder letter of a lawyer assigned with the collection. The assertion of further rights and claims shall remain unaffected.
9.3 In case of default of payment of the client Anna Parisa Ehsani is entitled to demand immediate payment of all services and partial services rendered in the context of other contracts concluded with the client.
9.4 Furthermore Anna Parisa Ehsani is not obliged to provide further services until the outstanding amount is paid (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment in installments has been agreed upon, Anna Parisa Ehsani reserves the right to demand immediate payment of the entire outstanding debt in case of non timely payment of partial amounts or additional claims (loss of date).
9.6 The customer is not entitled to set off his own claims against claims of Anna Parisa Ehsani, unless the customer’s claim has been acknowledged in writing by Anna Parisa Ehsani or has been established by court.
10. property right and copyright
10.1 All services of Anna Parisa Ehsani, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, concepts, film styles, slides), also single parts of them, remain as well as the single work pieces and design originals in the property of Anna Parisa Ehsani and can be reclaimed by Anna Parisa Ehsani at any time – especially at termination of the contractual relationship. By paying the fee the client acquires the right of use for the agreed purpose. In the absence of any other agreement the customer may use the services of Anna Parisa Ehsani exclusively in Austria. The acquisition of rights of use and exploitation of services of the agency requires in any case the complete payment of the fees charged by Anna Parisa Ehsani. If the client already uses the services of Anna Parisa Ehsani before this date, this use is based on a loan relationship that can be revoked at any time.
10.2 Modifications or adaptations of Anna Parisa Ehsani’s services, especially their further development by the customer or by third parties working for him, are only allowed with the explicit consent of Anna Parisa Ehsani and – as far as the services are protected by copyright – of the author.
10.3 For the use of services of Anna Parisa Ehsani, which exceeds the originally agreed purpose and scope of use, the consent of Anna Parisa Ehsani is required – regardless of whether this service is protected by copyright. For this, Anna Parisa Ehsani and the author are entitled to a separate appropriate remuneration.
10.4 For the use of services of Anna Parisa Ehsani or of graphical or audiovisual means, for which Anna Parisa Ehsani has worked out conceptual or design templates, after the expiration of the contract – regardless of whether this service is protected by copyright or not – the consent of Anna Parisa Ehsani is also required.
10.5 The customer is liable for Anna Parisa Ehsani for any unlawful use in double the amount of the fee appropriate for this use.
10.6 The client acknowledges that he has to take care of the compliance of his corporate identity guidelines himself. Changes ordered by the customer, such as an animation of the company logo, must be coordinated by the customer within the company before the change is ordered.
11.1 Anna Parisa Ehsani is entitled to refer to her one-person company and if applicable to the author on all film productions and in all graphic measures, without the customer being entitled to any remuneration for this.
11.2 Anna Parisa Ehsani is entitled to refer to the existing or former business relationship with the customer on her own advertising media and especially on her internet website with name and company logo (reference), subject to the written revocation of the customer, which is possible at any time.
12.1 The customer has to report possible defects immediately, in any case within eight days after delivery/service by Anna Parisa Ehsani, hidden defects within eight days after recognition of the same, in writing with description of the defect; otherwise the service is considered as approved. In this case the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects is excluded.
12.2 In case of justified and timely notice of defects the customer is entitled to improvement or exchange of the (partial) delivery/service by Anna Parisa Ehsani. Anna Parisa Ehsani is entitled to determine whether an improvement or an exchange will take place, if both options are possible. Anna Parisa Ehsani will make the improvements or replacement within a reasonable period of time, and Anna Parisa Ehsani’s customer will allow Anna Parisa Ehsani to take all measures necessary to investigate and remedy the defect. Anna Parisa Ehsani is entitled to refuse the improvement of the service, if it is impossible or for Anna Parisa Ehsani with a disproportionate effort. In this case the customer is entitled to the legal rights of change 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.
12.3 It is also incumbent on the client to carry out the verification of the service regarding its legal admissibility, especially regarding competition, trademark, copyright and administrative law. Anna Parisa Ehsani is only obliged to a rough check of the legal admissibility. Anna Parisa Ehsani is not liable for the legal admissibility of content in case of slight negligence or after fulfillment of a possible duty to warn the client, if the content was given or approved by the client.
12.4 The warranty period is six months from delivery/service. The right of recourse against Anna Parisa Ehsani according to § 933b Abs 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments because of complaints. The presumption of § 924 ABGB is excluded.
13 Liability and Product Liability
13.1 In cases of slight negligence a liability of Anna Parisa Ehsani and those of her employees, contractors or other vicarious agents (“people”) for material or financial damage of the customer is excluded, no matter if it is a question of direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence has to be proven by the injured party. As far as the liability of Anna Parisa Ehsani is excluded or limited, this also applies to the personal liability of her “people”.
13.2 Any liability of Anna Parisa Ehsani for claims, which are made against the client due to the service provided by Anna Parisa Ehsani (e.g. advertising measure), is explicitly excluded, if Anna Parisa Ehsani has fulfilled her duty to inform or if such a duty was not recognizable for her, whereby slight negligence does not harm. In particular Anna Parisa Ehsani is not liable for legal costs, own lawyer’s fees of the customer or costs of judgment publications as well as for possible claims for damages or other claims of third parties; the customer has to indemnify and hold Anna Parisa Ehsani harmless in this respect.
13.3 Claims for damages of the customer expire in six months after knowledge of the damage; in any case after three years after the infringement act of Anna Parisa Ehsani. Claims for damages are limited to the net order value.
14. data protection
14. 1 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 details, UID number) for the purpose of contract fulfillment and support of 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 Customer agrees that electronic mail may be sent to him for advertising purposes until revoked.
14.2 This consent may be revoked at any time in writing by e-mail, fax or letter to the contact data stated in the header of the GTC.
15 Applicable law
The contract and all mutual rights and obligations derived from it as well as claims between Anna Parisa Ehsani and the customer are subject to Austrian substantive law under exclusion of its referral norms and under exclusion of the UN Convention on Contracts for the International Sale of Goods.
16 Place of fulfillment and jurisdiction
16.1 Place of fulfillment is the domicile of Anna Parisa Ehsani. In case of shipment the risk is transferred to the customer as soon as Anna Parisa Ehsani has handed over the goods to the carrier chosen by her.
16.2 As place of jurisdiction for all legal disputes arising between Anna Parisa Ehsani and the customer in connection with this contractual relationship, the court having subject-matter jurisdiction for the registered office of Anna Parisa Ehsani is agreed. Notwithstanding this, Anna Parisa Ehsani is entitled to sue the customer at his general place of jurisdiction.
16.3 As far as in this contract terms referring to natural persons are mentioned only in male form, they refer to women and men in the same way. When applying the designation to certain natural persons, the respective gender-specific form is to be used.