General Terms and Conditions

1. Validity, conclusion of contract

• digitalists Informationstechnologie GmbH (hereinafter “digitalists GmbH”) provides its services exclusively on the basis of the following general terms and conditions. These also apply to all future business relationships, even if no express reference is made to them.
• Subsidiary agreements, reservations, changes or additions to these general terms and conditions must be in writing to be valid. This also applies to waiving this formal requirement.
• Any terms and conditions of the customer will not be accepted unless otherwise expressly agreed in writing in individual cases. There is no need for digitalists GmbH to specifically object to the customer’s general terms and conditions. If individual provisions of these General Terms and Conditions are invalid, this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision must be replaced by an effective one that comes closest to its meaning and purpose.
• The offers and cost estimates from digitalists GmbH are subject to change, non-binding and valid for 14 days from the date of issue. The offers and cost estimates are in euros excluding 20% ​​VAT, based on current labor and material costs. Prices subject to change.

2. Scope of services, order processing and the customer's obligation to cooperate

• The scope of the services to be provided results from the service description in the offer or any order confirmation from digitalists GmbH, as well as any briefing protocol. Subsequent changes to the service content require written confirmation from digitalists GmbH. Within the framework specified by the customer, digitalists GmbH has freedom of design when fulfilling the order.
• All services provided by digitalists GmbH (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and approved in writing.
• The customer will provide digitalists GmbH with all information and documents required for the provision of the service in a timely and complete manner on data media in a final, structured and controlled manner. He will inform digitalists GmbH of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expense that arises as a result of work having to be repeated or delayed by digitalists GmbH as a result of incorrect, incomplete or subsequently changed information. Any additional effort for data conversions will be billed based on the hourly effort.
• The customer is further obliged 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. digitalists GmbH is not liable for any violation of such rights. If a claim is made against digitalists GmbH due to such an infringement, the customer shall indemnify and hold digitalists GmbH harmless; He must compensate her for all disadvantages that she incurs as a result of making claims against third parties.

3. External services / commissioning of third parties

• digitalists GmbH is entitled, at its own discretion, to carry out the service itself, to use expert third parties as vicarious agents when providing contractual services and/or to substitute such services (“third-party services”).
• The commissioning of third parties as part of an external service is carried out either in your own name or in the name of the customer. digitalists GmbH will carefully select this third party and ensure that it has the necessary professional qualifications.
• If digitalists GmbH commissions necessary or agreed external services, the respective contractors are not vicarious agents of digitalists GmbH.

4. Dates

• Unless expressly agreed as binding, stated delivery or service deadlines are only approximate and non-binding. Binding appointment agreements must be recorded in writing or confirmed in writing by digitalists GmbH. Agreed production periods always take place after the concept has been approved and all materials have been completely handed over in the agreed form by the customer. If there are delays, digitalists GmbH is no longer bound to the originally agreed time frame.
• If the delivery/service of digitalists GmbH is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be prevented by reasonable means, the performance obligations are suspended for the duration and to the extent of the obstacle and the deadlines are extended accordingly. If such delays last more than four weeks, the customer and digitalists GmbH are entitled to withdraw from the contract.
• If digitalists GmbH is in default, the customer can only withdraw from the contract after giving digitalists GmbH a grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-fulfillment or delay are excluded, except in the case of proof of intent or gross negligence.

5. Premature dissolution

• digitalists GmbH is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if a) the execution 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 under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
  c) there are legitimate concerns about the creditworthiness of the customer and the customer neither makes advance payments at the request of digitalists GmbH nor provides suitable security before digitalists GmbH provides service.
  d) bankruptcy or settlement proceedings are opened against the customer's assets or an application to open such proceedings is rejected due to insufficient assets to cover the costs or if the customer stops making payments.

6. Fee

• Unless otherwise agreed, digitalists GmbH is entitled to a fee for each individual service as soon as it has been provided. digitalists GmbH is entitled to request advance payments to cover its expenses. From an order volume of € 3,000 or those that extend over a longer period of time, digitalists GmbH is entitled to create interim invoices or advance invoices or to request payments on account.
• The fee is a net fee plus VAT at the statutory rate.
• All services provided by digitalists GmbH that are not expressly covered by the agreed fee will be paid for separately. All cash expenses incurred by digitalists GmbH must be reimbursed by the customer.
• For all work by digitalists GmbH that is not carried out by the customer for whatever reason, digitalists GmbH is entitled to the agreed fee. The crediting provision of § 1168 AGBG is excluded.

7. Payment, retention of title

• The fee is due for payment immediately upon receipt of the invoice and without deductions, unless special payment conditions are agreed in writing in individual cases. This also applies to the recharging of all cash outlays and other expenses. The goods delivered by digitalists GmbH and all usage rights remain the property of digitalists GmbH until the fee has been paid in full, including all additional liabilities.
• If the customer defaults on payment, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse digitalists GmbH for any dunning and collection costs incurred, to the extent that they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at the usual market rate as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
• If the customer defaults on payment, digitalists GmbH can immediately declare all services and partial services provided within the framework of other contracts concluded with the customer due. Furthermore, digitalists GmbH is not obliged to provide any further services until the outstanding amount has been paid. If payment was agreed in installments, digitalists GmbH reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or additional claims are not paid on time (loss of deadline).
• The customer is not entitled to set off his own claims against claims of digitalists GmbH, unless the customer's claim has been recognized in writing by digitalists GmbH or has been determined by a court.

8. Property rights and copyright

• All services provided by digitalists GmbH, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and original designs, remain the property of digitalists GmbH and can be requested back by digitalists GmbH at any time - especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use it for the agreed purpose. The acquisition of rights of use and exploitation of digitalists GmbH's services always requires full payment of the fees charged by digitalists GmbH.
• Changes or modifications to digitalists GmbH's services, in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of digitalists GmbH and - if the services are protected by copyright - of the author (e.g. purchased stock material).
• For the use of digitalists GmbH services that go beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright - the consent of digitalists GmbH is required. Digitalists GmbH and the author are entitled to separate appropriate compensation for this.
• In the course of designing websites or other commissioned works, digitalists GmbH also uses licensed stock material (photos, videos, music, etc.). The licensing conditions of the respective provider apply exclusively to this material.

9. Labeling

• Subject to the customer's written revocation, which is possible at any time, digitalists GmbH is entitled to refer to the existing business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).

10. Warranty

• The customer must report any defects immediately, in any case within eight days of delivery/service by digitalists GmbH, and hidden defects within eight days of recognizing them, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and compensation claims as well as the right to challenge errors due to defects is excluded.
• In the event of justified and timely notification of defects, the customer has the right to have digitalists GmbH improve or replace the delivery/service. digitalists GmbH will correct the defects within a reasonable period of time, whereby the customer enables digitalists GmbH to take all measures necessary to investigate and correct the defects. digitalists GmbH is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for digitalists GmbH. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of an improvement, the client is responsible for transmitting the defective (physical) item at his own expense.
• It is the client's responsibility to check the service for legal admissibility, in particular competition, trademark, copyright and administrative law. digitalists GmbH is not liable for the accuracy of content if it was specified or approved by the customer.
• The warranty period is six months from delivery/service. The right of recourse against digitalists GmbH in accordance with Section 933b Paragraph 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of § 924 AGBG is excluded.

11. Liability and product liability

• In cases of slight negligence, liability of digitalists GmbH for material or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, negligence when concluding the contract, due to defective or incomplete performance. The injured party must prove the existence of gross negligence.
• Any liability of digitalists GmbH for claims that are raised against the customer due to the service provided by digitalists GmbH (e.g. advertising measure) is expressly excluded if digitalists GmbH has fulfilled its obligation to provide information or if such an obligation was not apparent to it, whereby slight negligence does not cause damage. In particular, digitalists GmbH is not liable for legal costs, the customer's own legal fees or costs of publication of judgments as well as for any claims for damages or other claims from third parties; The customer must indemnify and hold digitalists GmbH harmless in this regard.
• The customer's claims for damages expire six months after becoming aware of the damage; in any case after three years from the infringement act by digitalists GmbH. Claims for damages, regardless of their legal basis, are limited to the net order value.
• The body responsible for data protection is the client. The latter must check the data protection compliance on its own behalf and for its own account and will hold digitalists GmbH harmless in data protection matters. The client is obliged to identify himself in writing as a data protection authority within the scope of the project. For web projects, this can be done in the legal notice or for web promotions in the broadest sense as part of the terms and conditions of participation.

12. Special provisions when providing web design, web consulting or software development services

• When implementing the project, 40% of the order sum is due when the order is placed, a further 40% when the test version is completed and the remaining 20% when the project is completed. If there are delays after handover of the finished version that are within the customer's control, the final invoice will be made no later than 3 weeks after handover by digitalists GmbH.
• The agreed fee includes a one-time correction process by digitalists GmbH after the test version has been completed. This takes place after the initial acceptance by the customer. For this purpose, the customer creates a written correction list, which serves as the basis for the corrections. It is well understood that these are only text corrections or minimal layout corrections. If the desired changes go beyond this scope (change request), digitalists GmbH will charge for these services based on the time required. digitalists GmbH undertakes to provide the customer with a corresponding offer.
• On-site services (programming, training, kick-off, etc.) are charged based on the actual effort plus travel times. For journeys over 50 km one way, travel expenses will also be charged according to the official mileage allowance.
• The customer acknowledges that any intervention in the programming codes, for example in the form of changes by the customer or third parties, may impair the functionality. digitalists GmbH assumes no liability for such impairments. Any repair work will be invoiced based on effort.
• The client is solely responsible for meeting the system requirements of the provider where the website is hosted. Coordination work with a provider will be invoiced based on effort. Furthermore, digitalists GmbH points out that programs developed for the server environment by digitalists GmbH may not be able to be ported or only partially ported to systems from other providers.
• If digitalists GmbH uses third-party software for programming (e.g. content management systems), the customer must purchase a corresponding license. The fee to be paid for this is not included in the agreed fee for the services provided by digitalists GmbH, unless specifically stated. If digitalists GmbH uses third-party software for programming, the customer is entitled to the right of use in accordance with the underlying license agreement and the customer will indemnify and hold digitalists GmbH harmless in the event of a violation.
• digitalists GmbH assumes no warranty for third-party software (e.g. content management systems). The maintenance (service releases, updates, etc.) of third-party software by digitalists GmbH must be regulated via a specially agreed service contract.
• Unless otherwise agreed, the HTML and CSS files are optimized to the most current and most widely used software versions, operating systems and hardware standards at the time of start of development.
• The choice of programming language is the responsibility of digitalists GmbH. In this respect, digitalists GmbH does not guarantee that the selected programming language can be used by third parties or is supported by third parties, such as providers.
• Web server access data and administrator rights for CMS systems are generally not passed on to the customer or third parties as long as digitalists GmbH has to provide a guarantee for the project. If the customer insists on passing on the access data, any warranty claim of the customer will expire and any repair work will be invoiced at cost.
• Source codes, e.g. from flash files as well as raw material from video productions, will not be passed on without exception and remain the property of digitalists GmbH.
• Written documentation that goes beyond standard project management (meeting minutes, schedules, cost plans) (e.g. documentation of the programming code, online CD manuals) must be agreed upon separately.

13. Data protection

• The customer expressly agrees that digitalists GmbH automatically determines, stores and processes the data provided by the customer (name, address, email address, email, credit card details, email details, credit card details, account transfer details) for the purposes of fulfilling the contract and supporting the customer as well as for its own advertising purposes. The client agrees that electronic mail will be sent to him for advertising purposes until revoked.

14. Applicable law

• The contract and all mutual rights and obligations as well as claims derived from it between digitalists GmbH and the customer are subject to Austrian substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

15. Place of performance and place of jurisdiction

• The place of performance is the headquarters of digitalists GmbH. When shipping, the risk passes to the customer as soon as digitalists GmbH has handed over the goods to the transport company chosen by them.
• The place of jurisdiction for all legal disputes arising between digitalists GmbH and the customer in connection with this contractual relationship is the court with jurisdiction over the registered office of digitalists GmbH. Regardless of this, digitalists GmbH is entitled to sue the customer at its general place of jurisdiction.