GENERAL TERMS AND CONDITIONS (T&C) IN RELATION TO COMPANIES
Version March 2021
German version here
1. APPLICABILITY AND CONCLUSION OF CONTRACT
1.1. Playful Solutions GmbH (hereinafter “PFS”) provides its services exclusively on the basis of the following General Terms and Conditions (hereinafter “T&C”). They apply to all legal relationships between PFS and the Customer, even if they are not expressly referred to in the offer. The T&C are exclusively applicable to legal relations with companies (above and hereinafter the “Customer”), i.e. B2B.
1.2. The version valid at the time of conclusion of the contract shall apply in each case. Deviations from the T&C and other supplementary agreements with the Customer shall only be effective if expressly confirmed in writing by PFS.
1.3. Any general terms and conditions or purchasing conditions of the Customer are not accepted, even if known, unless otherwise expressly agreed in writing in the individual case. PFS expressly rejects the general terms and conditions of the Customer. A further rejection of the general terms and conditions of the Customer by PFS is not required.
1.4. Amendments to the T&C shall be notified to the Customer and shall be deemed to have been accepted if the Customer does not object to the amended T&C in writing within 14 days; the Customer will be expressly informed of the significance of such silence and of the specifically amended clauses in the notification. This fictitious consent shall not apply to changes in essential service contents and charges. In these cases, amendments to the T&C must be made in writing and must be expressly accepted by both parties.
1.5. Unless expressly stated otherwise in writing in individual cases, PFS’s offers are subject to change and non-binding.
1.6. Any orders and agreements shall only be legally binding if they are signed by PFS in writing and in the proper form, and only to the extent stated in the order confirmation.
1.7. Verbal collateral agreements and declarations shall only be effective if PFS confirms them in writing and shall only apply to the respective individual business case.
2. PROTECTION OF CONCEPT AND IDEA
2.1. If the potential Customer has already invited PFS in advance to prepare a concept or to hold a pitching workshop, and if PFS accepts this invitation before the conclusion of the main contract, the following provision shall apply:
2.2. The potential Customer and PFS enter into a contractual relationship (“Pitching Contract”) already through the invitation and the acceptance of the invitation by PFS. This contract is also based on these T&C.
2.3. The potential Customer acknowledges that PFS already provides cost-intensive preliminary services with the concept development, although it has not yet assumed any service obligations.
2.4. The concept or parts thereof may, but do not necessarily, represent copyrighted or otherwise specially protected services. Irrespective of the legal qualification of the concept or parts thereof, it is understood that the presentation or provision of the concept or parts thereof does not in any way grant or transfer to the potential Customer any rights of use or exploitation whatsoever in these or the industrial property rights on which they are based. All rights of use and exploitation of the concept or parts thereof (including mere ideas and solutions or other services not protected by special law) as well as any industrial property rights on which they are based shall therefore remain exclusively and entirely with PFS unless otherwise expressly agreed in writing. This shall apply irrespective of whether or not the concept documents contain separate references to industrial property rights.
3. SCOPE OF SERVICES, ORDER PROCESSING AND COOPERATIVE DUTIES
3.1. The scope of the services to be provided is defined in the service description in the offer, any order confirmation by PFS, the service contract and any briefing protocols (hereinafter collectively referred to as “Offer and Contract Documents”). The Customer shall check the written description of services set out in the Offer Documents for correctness and completeness and shall immediately submit any requests for changes in writing. The scope of the Offer and Contract Documents shall be deemed binding at the latest upon signing of the service contract or, if this takes place beforehand at the request of the Customer, upon commencement of the performance of the service.
3.2. Subsequent changes to the scope of services shall require written confirmation by PFS, whereby PFS shall not be obliged to accept any changed service requests. This shall also apply to (additional) training, explanations, documentation or insurance requested by the Customer, which are not part of the agreed service offer. If these are associated with additional costs not stated in the original offer, the change shall be treated by PFS as an additional order. PFS shall promptly provide the Customer with an offer for the additional services and shall not perform them until they have been confirmed by the Customer. Any delays in the originally agreed scope of services resulting from this shall be borne by the Customer.
3.3. Within the framework specified by the Customer resulting from the Offer and Contract Documents and from further briefing protocols, PFS shall be free in the execution of the order.
3.4. Any services provided by PFS individually for the Customer (e.g. preliminary drafts, sketches, presentations, models, etc.) for which an interim acceptance by the Customer has been agreed shall be accepted by the Customer in writing within 14 calendar days of receipt. After expiry of this period without feedback from the Customer, they shall be deemed to have been accepted. Refusal of interim acceptance is only possible in the event of significant deviations from the service description agreed upon in writing. If the supplementary and/or (re-)modification requests lack the necessary detailed and substantiated explanations and information, this shall not be deemed to be notification of supplementary and/or (re-)modification requests in due time, whereby after expiry of the aforementioned period the respective service shall nevertheless be deemed to have been accepted by the Customer.
3.5. Any services provided by PFS individually for the Customer (e.g. concepts, solutions, games or experience rooms) for which final acceptance by the Customer has been agreed shall be accepted by the Customer within 30 calendar days of delivery by PFS. After expiry of this period without feedback from the Customer or in the event of earlier regular use in live operation, the services shall be deemed to have been accepted in any case. If the Customer refuses acceptance without giving reasons or if the supplementary and/or (re-)modifications requests lack the necessary detailed and substantiated explanations and information, this shall not be deemed to be notification of supplementary and/or (re-)modification requests in due time, whereby after expiry of the aforementioned period the respective service shall nevertheless be deemed to have been accepted by the Customer.
3.6. Any defects that may occur – i.e. deviations from the service description agreed upon in writing – shall be reported to PFS in writing by the Customer within a period of 14 calendar days with sufficient documentation and shall be remedied by PFS as soon as possible. In the case of major defects – i.e. defects which prevent provisional commissioning – a new acceptance in accordance with the above provisions shall be required after the defects have been remedied. A rejection of the final acceptance due to insignificant defects is not permitted.
3.7. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually impossible or not permitted for legal reasons, PFS shall be obliged to notify the Customer thereof immediately. If the Customer does not change the service description or does not create the preconditions for execution to become possible or permissible, PFS may refuse further execution. If the impossibility or impermissibility of execution is the result of a failure on the part of the Customer or a subsequent change in the service description on the part of the Customer, PFS shall be entitled to withdraw from the order. The costs and expenses incurred for the activities of PFS up to that point as well as any dismantling costs shall be reimbursed by the Customer.
3.8. The Customer shall make available to PFS in a timely and complete manner all information and documents required for the performance of the services. It shall inform PFS of all circumstances that are of importance for the performance of the order, even if they only become known during the performance of the order. The Customer shall bear the expenses incurred if work has to be repeated by PFS or is delayed as a result of incorrect, incomplete or subsequently changed information provided.
3.9. The Customer shall furthermore be obliged to check the documents (photos, logos, etc.) provided by it for the execution of the order for any copyrights, trademark rights or other (industrial) property rights of third parties (rights clearing) and guarantees that the documents are free of any rights of third parties which would prevent PFS from fulfilling the order, and can therefore be used for the intended purpose. Any liability of PFS towards the Customer in connection with the documents provided by the Customer for the execution of the order shall be excluded. If a claim is made against PFS by a third party due to such an infringement, the Customer shall fully indemnify and hold PFS harmless; the Customer shall compensate PFS for all losses incurred by PFS due to a claim by a third party, in particular the costs of appropriate legal representation and the conclusion of a commercially reasonable settlement. The Customer shall support PFS in the defence against any claims of third parties free of charge and shall provide PFS with all documents without being requested to do so.
3.10. During the term of the order, the Customer shall notify PFS of any changed or newly occurring circumstances that could be of significance in connection with the execution of the order as soon as they become known.
4. SUBCONTRACTING OF SERVICES TO THIRD PARTIES
4.1. PFS shall be entitled, at its own discretion, to perform the services itself, to use competent third parties as vicarious agents for the performance of contractual services and/or to substitute such services (“Third-Party Services”).
4.2. The commissioning of third parties within the scope of a Third-Party Service shall generally be carried out in the name of PFS, if requested by the Customer also in the name of the Customer. PFS shall diligently select these third parties and ensure that they have the required professional qualifications.
4.3. The Customer shall be liable for obligations to third parties which have been made known to the Customer and which extend beyond the term of the contract. This shall also expressly apply in the event of termination of the contractual relationship between PFS and the Customer for good cause.
5.1. Although PFS shall always endeavour to meet the stated delivery or performance deadlines, unless expressly agreed as binding in writing, these shall only be deemed to be approximate targets and non-binding.
5.2. If the delivery/service of PFS is delayed for reasons attributable to the sphere of the Customer and/or the Customer’s non-fulfilled obligation to cooperate pursuant to Clause 3 (e.g. delayed or incomplete delivery of information or documents necessary for the performance of the service, delayed interim acceptance, postponement of necessary briefings, subsequent requests for changes in the scope of services, interruption of the project, etc.), PFS shall not be liable or responsible for any consequences, damages, additional costs or disadvantages on the part of the Customer. If, as a consequence, PFS is not able to meet binding deadlines, PFS shall not be liable or responsible for any consequences, damages, additional costs or other disadvantages on the part of the Customer. On the other hand, the Customer shall reimburse PFS in full for any additional costs that PFS demonstrably incurred due to such a delay.
5.3. If the delivery/service of PFS is delayed for reasons for which PFS is not responsible or which do not originate from the sphere of PFS (e.g. events of force majeure, labour disputes, natural disasters, transport blockages or other unforeseeable events which cannot be averted by reasonable means), the performance obligations shall be suspended for the duration and to the extent of the impediment and the delivery/service periods shall be extended accordingly. If such delays (presumably) last more than two months, the Customer and PFS shall be entitled to withdraw from the contract.
5.4. If PFS is in default, the Customer may withdraw from the contract only after having granted PFS a reasonable grace period in writing (which shall in any case amount to 14 calendar days and shall be further assessed according to the reasonableness in each individual case) and such grace period has expired fruitlessly. Claims for damages by the Customer due to non-performance or delay shall be excluded, except in the case of evidence of intent or gross negligence on the part of PFS, for which the Customer shall bear the burden of proof.
6. EARLY TERMINATION AND ITS CONSEQUENCES
6.1. PFS shall be entitled to terminate the contract with the Customer for good cause with immediate effect. Good cause shall be deemed to exist in particular if:
6.1.1. the performance of the service becomes factually or legally impossible for reasons for which the Customer is responsible, or is further delayed despite a grace period of 14 calendar days having been set;
6.1.2. the Customer continues to violate material obligations under this contract, such as payment of a due amount or duties to cooperate, despite a written warning with a grace period of 14 calendar days;
6.1.3. there are justified concerns regarding the creditworthiness of the Customer and the Customer fails to make advance payments at the request of PFS or to provide suitable security prior to performance by PFS.
6.2. The Customer shall be entitled to terminate the contract with PFS for good cause with immediate effect. Good cause shall be deemed to exist in particular if PFS continues to violate material provisions of this contract despite written warning by registered letter with a reasonable grace period of at least 14 calendar days to remedy the violation of the contract.
6.3. An order cancellation by the Customer shall only be possible with the written consent of PFS. If PFS agrees to the cancellation, PFS shall have the right to charge a cancellation fee in the amount of 30% of the unbilled order value of the total project in addition to the services already rendered and costs incurred.
6.4. The granting of rights by PFS to Customer shall only take place in accordance with clause 9. after full payment and crediting of the entire fee owed for this. Therefore, if the Customer wishes to acquire the rights to use and exploit the services provided by PFS in the event of an early termination of the contract (for any reason whatsoever or by whomsoever), this shall require the full payment and crediting of the entire fee due for such services (and thus not merely partial payments or payments for individual service phases).
7.1. Unless otherwise agreed, PFS’s claim for payment shall arise for each individual (partial) service specified in the Offer and Contract Documents as soon as it has been performed. PFS shall be entitled to demand advance payments to cover its own expenses. From an order volume with an (annual) budget of €50,000.00 (excl. VAT) or for projects extending over a period of more than 3 calendar months, PFS shall be entitled to issue interim or advance invoices or to demand payments on account. The non-exercise or delayed exercise of the invoicing right by PFS shall not be deemed as a waiver of these invoicing modalities.
7.2. The remuneration shall be understood as net remuneration plus value added tax at the statutory rate. In the absence of an explicit agreement in the individual case, PFS shall be entitled to remuneration in the amount customary in the market for the services rendered and the transfer of the rights of use (in particular under copyright and trademark law).
7.3. All services of PFS which are not expressly covered by the agreed remuneration shall be remunerated separately. Unless otherwise agreed, PFS shall also be entitled to reimbursement of any (travel) expenses and out-of-pocket expenses.
7.4. If the Customer unilaterally changes or terminates work commissioned without the involvement of PFS, the Customer shall compensate PFS for the services rendered up to that point in accordance with the agreed remuneration and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of PFS, the Customer shall, in addition, reimburse PFS for the entire remuneration agreed upon for this order, whereby the offsetting compensation of § 1168 AGBG shall be excluded. Furthermore, PFS shall be indemnified and held harmless against any claims of third parties, in particular contractors of PFS. Upon payment of the remuneration, the Customer shall not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed shall be returned to PFS without delay.
7.5. Estimates made by PFS, which are not expressly designated as binding, of the amount of the remuneration likely to be incurred are to be regarded as non-binding and not as a binding cost estimate.
7.6. An invoice sent to the Customer shall be deemed approved if and to the extent that the Customer does not object in writing within ten calendar days from the date of posting at PFS.
7.7. If several Customers place a joint order, they shall be jointly and severally liable for all claims of PFS arising therefrom.
8. PAYMENT, RETENTION OF TITLE
8.1. The remuneration is payable 14 days after receipt of the invoice and without deduction, unless special terms of payment are agreed upon in writing in individual cases. This shall also apply to the charging of all travel expenses, out-of-pocket expenses and other expenses. The tangible products delivered by PFS shall remain the full property of PFS until full payment of the remuneration including all ancillary liabilities.
8.2. The Customer is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.
8.3. In the event of late payment by the Customer, the statutory interest on arrears shall apply at the rate applicable to corporate transactions, but at least four percentage points above the respective base interest rate. Any further legal claims (e.g. according to § 1333 ABGB) shall remain unaffected. Furthermore, in the event of late payment, the Customer shall reimburse PFS for any dunning and debt collection expenses incurred, insofar as they are necessary for appropriate legal action. This shall in any case include the costs of two dunning letters in the customary amount of currently at least €20.00 per dunning letter as well as one dunning letter from a lawyer. The assertion of further rights and claims remains unaffected.
8.4. In the event of late payment by the Customer, PFS shall be entitled to demand immediate payment of all services and partial services rendered under other contracts concluded with the Customer. Furthermore, PFS shall not be obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the remuneration shall remain unaffected.
8.5. If payment in instalments has been agreed upon, PFS 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).
9. OWNERSHIP, GRANTING OF RIGHTS, GUARANTEE OF RIGHTS AND RETENTION OF TITLE UNDER COPYRIGHT LAW
9.1. All services provided by PFS, including those from presentations (e.g. suggestions, ideas, sketches, preliminary designs, etc.), including individual parts thereof, shall remain the property of PFS, as shall the individual workpieces and design originals, and may be reclaimed by PFS at any time – in particular upon termination of the contractual relationship. Furthermore, all copyrights to the agreed services shall remain with PFS or its licensors.
9.2. The Customer shall acquire the right of use for the agreed purpose by payment and crediting of the remuneration, whereby the scope of the granting of rights (in particular in terms of subject matter, time and location as well as in questions of exclusivity) shall always result from the actual Offer and Contract Documents. If nothing or nothing else is agreed in the Offer and Contract Documents, the granting of rights shall in any case be merely non-exclusive (permission to use the work), locally limited to Austria or the country where the service is provided and otherwise to the extent necessary to enable the Customer to use the services to the contractually agreed extent.
9.3. If and to the extent that PFS grants the Customer rights of use and exploitation of the services provided by PFS, PFS declares to the Customer that PFS is authorized to dispose of these rights.
9.4. The acquisition of rights of use and exploitation (of whatever nature) to services of PFS requires in any case the full payment of the remuneration invoiced by PFS for such services and the crediting to the account of PFS. All grants of rights (irrespective of whether they relate to works protected by copyright or other works or services protected or not protected by special law) by PFS in favour of the Customer on the basis of these T&C, the Offer and Contract Documents as well as other agreements between PFS and the Customer shall therefore only be effective after full payment and crediting of the remuneration owed for this to the account of PFS. If the Customer already uses the services of PFS before this point in time, this use shall be based on a transfer of rights that can be revoked at any time and without stating reasons. Should the Customer, for whatever reason, reverse payments made to PFS, this shall result in an automatic revocation of the rights of use and exploitation granted, without requiring a separate notification by PFS to the Customer.
9.5. The cooperation of the Customer in the performance of the services as set forth in Clause 3 shall not give rise to any rights beyond the right of use set forth in the preceding paragraph. Any further rights of the Customer to the services rendered by PFS must be explicitly stated in writing in the service contract.
9.6. Modifications or adaptations of services provided by PFS, in particular their further development by the Customer or by third parties acting on behalf of the Customer, shall only be permitted with the express written consent of PFS and – insofar as the services are protected by copyright – of the author. The release of any “open files” is thus expressly not part of the contract. PFS is therefore not obliged to surrender them. Without contractual assignment of the rights of use also for “electronic works” the Customer has no legal claim to them.
9.7. For the use of services provided by PFS which exceeds the originally agreed upon purpose and scope of use, the written consent of PFS is required – regardless of whether or not such service is protected by copyright or other special rights. For this, PFS and the author shall be entitled to a separate reasonable remuneration. If the service consists of a software program, the Customer shall be permitted to make copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.
9.8. The Customer shall be liable to PFS for any unlawful use of the services of PFS, irrespective of fault, in the amount of twice the appropriate remuneration for such use. Any further claims for damages by PFS shall remain unaffected.
10. OWN USE FOR REFERENCE PURPOSES AND FOR SELF-PROMOTION
10.1. Subject to the written revocation of the Customer, which is possible at any time, PFS shall be entitled to refer to the existing or former business relationship with the Customer by name and company logo on its own advertising media and in particular on its Internet website (reference note).
10.2. Irrespective of the specific granting of rights by PFS to the Customer with regard to the services of PFS, PFS shall in any case be irrevocably entitled to use these services or parts/excerpts thereof in freely edited or unedited form for purposes of PFS’s self-promotion, for reference purposes vis-à-vis (potential) customers of PFS and for the purpose of submission to (prize) events, competitions, etc. as well as for teaching and instruction, further training and seminar purposes. This shall include, in particular, the right to reproduce, distribute, make available, lecture, perform and demonstrate for the purposes described above and shall therefore include, in particular, online posting on the social media accounts (Facebook etc.) of PFS, on the other online media services of third parties used by PFS (such as Instagram etc.) as well as on the websites operated by PFS, demonstration by means of MS PowerPoint, presentation, video beamers and (computer) screens as well as the production of physical work carriers.
11.1. The Customer shall notify PFS in writing of any defects without undue delay, in any case within 14 calendar days after delivery/provision of service by PFS or after acceptance pursuant to Clause 3.5, hidden defects within 14 calendar days after detection of the same, describing the defect; otherwise the service shall be deemed accepted. 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.
11.2. Notices of defects shall only be valid if they concern reproducible defects. In the event of a justified and timely notice of defects, the Customer shall be entitled to rectification or replacement of the delivery/service by PFS. PFS shall remedy the defects within a reasonable period of time, whereby the Customer shall allow PFS to take all measures necessary to investigate and remedy the defects. PFS shall be entitled to refuse rectification of the service if this is impossible or requires a disproportionately high effort on the part of PFS. In this case, the Customer shall be entitled to the statutory rights of rescission or reduction. In the event of rectification, it shall be incumbent upon the customer to transfer the defective (physical) item at its own expense.
11.3. Corrections or additions which prove necessary up to the handover of the agreed service due to organizational or technical deficiencies for which PFS is responsible shall be carried out by PFS free of charge.
11.4. PFS does not assume any warranty for errors, malfunctions or damages resulting from improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means, hardware and data carriers, if such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damages. In particular, any warranty by PFS for services which have been subsequently modified by the Customer or by third parties shall be excluded.
11.5. The rectification of defects as well as assistance, fault diagnosis and fault and malfunction rectification for which PFS does not assume any warranty pursuant to Clause 11.4 shall be carried out by PFS for an appropriate remuneration.
11.6. It is also the responsibility of the Customer to check the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. PFS shall only be obliged to perform a rough check of the legal admissibility. PFS shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilment of any duty to warn the Customer, if such content was specified or approved by the Customer.
11.7. The warranty period shall be six months from delivery/service. The right of recourse against PFS pursuant to § 933b para. 1 AGBG shall expire one year after delivery/service. The Customer shall not be entitled to withhold payments due to defects. The rule of presumption of § 924 AGBG is excluded.
12. LIABILITY AND PRODUCT LIABILITY
12.1. In cases of slight negligence, any liability of PFS and its employees, contractors or other vicarious agents (hereinafter collectively referred to as “People”) for damage to property 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 existence of gross negligence has to be proven by the injured party. Insofar as the liability of PFS is excluded or limited, this shall also apply to the personal liability of its People.
12.2. Any liability of PFS for claims made against the Customer on the basis of the service provided by PFS (e.g. experience rooms) is expressly excluded if PFS has fulfilled its duty to inform or if such a duty was not recognizable for PFS, whereby slight negligence does not harm. In particular, PFS shall not be liable for legal costs, the Customer’s own legal fees or the costs of publishing judgments, or for any claims for damages or other claims by third parties; the Customer shall indemnify and hold PFS harmless in this regard.
12.3. Claims for damages of the Customer shall expire after six months from knowledge of the damage; in any case, however, after three years from the act of infringement by PFS. Claims for damages shall be limited to the net order value.
12.4. PFS shall not assume any warranty for any claims of third parties arising from the actual use by the Customer or third parties commissioned by the Customer of the services/products provided/created by PFS, which go beyond the rights guarantees given in Clause 9 and/or in the Offer and Contract Documents.
12.5. Likewise, PFS does not guarantee a specific (advertising) success of the services/products provided/created by PFS.
13. DATA PROTECTION, COMMUNICATION AND ADVERTISING
13.1. PFS is the data controller within the meaning of the General Data Protection Regulation (hereinafter “GDPR”) with respect to all processed personal data of the Customer.
13.3. PFS shall obligate itself and its employees, contractors or other vicarious agents to comply with the provisions of the GDPR and the DSG.
13.4. PFS shall use appropriate technical and organizational measures to secure the processed personal data of customers, taking into account the nature, scope, circumstances and purposes of the data processing, as well as the different probabilities of occurrence and severity of the risks to the rights and freedoms of the data subjects, in order to ensure that the processing is carried out in accordance with the requirements of the GDPR and the DSG.
13.5. The Customer is aware of the obligations arising from the GDPR and undertakes to comply with the same as well as all other provisions on data protection and shall implement the data protection measures provided for therein in each case.
13.6. The Customer agrees to the sending of the invoice by email.
13.7. Unless otherwise agreed, communication between PFS and the Customer shall be made to the mutually designated contact persons in the form of email messages. The contents of telephone conversations shall be documented without delay.
13.8. In the course of the business relationship, PFS shall occasionally send the Customer information about PFS services/products (similar to the services ordered by the Customer) and (marketing) events of PFS by means of electronic messages (including email) pursuant to Section 107 (3) of the Austrian Telecommunications Act (Telekommunikationsgesetz, TKG), whereby the Customer shall be free to object to such mailings at any time, free of charge and without stating reasons.
14. CONFIDENTIALITY AND LOYALTY
14.1. Both contracting parties undertake to treat all confidential information obtained directly or indirectly within the scope of the agreed services as confidential and to use it only in connection with the agreed scope of services. This means in particular not to disclose this information to unauthorized third parties or make it accessible to unauthorized third parties in any other form without the explicit consent of the disclosing party and to take all reasonable precautions to prevent unauthorized third parties from accessing this information.
14.2. Confidential information shall only be disclosed to those authorized persons who need to receive it due to their activity for the agreed scope of services. Authorized persons are (only) employees or (sub)contractors who are subject to these confidentiality provisions or who have signed a corresponding confidentiality agreement. The Customer shall be liable to PFS for any pecuniary or other damage pursuant to the Austrian Act against Unfair Competition (Bundesgesetz gegen den unlauteren Wettbewerb, UWG) caused by non-compliance with this provision.
14.3. The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, also via third parties, of employees and (sub)contractors of the other contractual partner who have participated in the performance of the service for the duration and 12 months after termination of the contract. The contracting party violating this provision shall be obliged to pay the other contracting party liquidated damages in the amount of one year’s salary of the person enticed away.
15. PLACE OF PERFORMANCE, JURISDICTION AND APPLICABLE LAW
15.1. Place of performance shall be the registered office of PFS in Vienna. In case of shipment, the risk shall pass to the Customer as soon as PFS has handed over the goods to the carrier (chosen by PFS or the Customer).
15.2. The place of jurisdiction for all legal disputes arising between PFS and the Customer in connection with this contractual relationship, including those concerning its validity, performance, breach, dissolution and their consequences, shall be exclusively the court in Vienna with subject-matter jurisdiction for the registered office of PFS.
15.3. Austrian law shall apply; the Act on Private International Law (IPRG) as well as the referral norms of Austrian law and the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
16.1. Changes or additions to these T&C must be made in writing to be valid.
16.2. If PFS and Customer have agreed on a separate Non-Disclosure Agreement (hereinafter “NDA”) prior to the agreement of these T&C and/or the Offer and Contract Documents, such NDA shall apply in addition to these T&C and the Offer and Contract Documents in the absence of any written agreement to the contrary.
16.3. The agreement of these T&C and/or the Offer and Contract Documents does not establish a service or company relationship between PFS and the Customer.
16.4. Notifications by PFS to the Customer shall be deemed to have been received in any case if they are sent to the contact person/(email) address provided by the Customer at the time the order was placed or to the changed contact person/(email) address provided in writing thereafter.
16.5. Should any provision of these T&C be or become invalid or unenforceable in whole or in part, this shall not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision which comes as close as possible to the invalid or unenforceable provision in its economic content; the same shall apply mutatis mutandis to any gaps in these T&C.