General Terms of Contract Design Austria (GTC DA)
These General Terms and Conditions (GTC) apply to all design orders (creative services) between the designer DA and his client. They do not apply to the sale of originals or to commercial services.
2. Basics of cooperation
2.1. The basis of every order is a framework (briefing) specified by the client, the requirements of which are to be met by the designer. Within the briefing, there is freedom of design for the fulfillment of the order.
2.2. The designer creates the work independently; However, he is entitled to use expert employees or cooperation partners for the implementation.
2.3. Any advice given by the designer relates exclusively to the field of design; liability for the »advice of the specialist« according to ABGB (§ 1299) is limited to this area.
2.4. The client ensures that all documents and circumstances as well as instructions that are necessary for optimal order fulfillment are made available to the designer in a timely and complete manner.
3. Copyright and right of use
3.1. Unless otherwise agreed between the client and the designer, the designer grants the client a right of use (exclusive right of use). Any programming services are excluded from this.
3.2. With full payment of the total fee and the ancillary costs, the client acquires the agreed right of use to the works created in fulfillment of the order in the version supplied, for the agreed purpose and scope of use. If no agreements have been made about the purpose and scope of use, the minimum scope required for the fulfillment of the order applies. Any other or further use in the future requires the designer’s consent, subject to a fee.
3.3. Any change, processing or imitation of the works made available for use is not permitted as long as the right to processing has not been granted in writing and for a fee.
3.4. The rights granted to the client (or, in the case of agencies, their customers), the advertiser, may only be passed on to third parties for a fee or free of charge with the express consent of the designer.
3.5. The client does not acquire ownership of the drafts, work steps and computer data. In the case of individual legal succession, all rights and obligations are transferred to the legal successor, but only to the extent agreed between the Designer DA and his customer. Any expansion of use by the legal successor requires the consent of Designer DA in any case.
3.6. If the client wants to continue to use the developed or designed concepts, ideas or works unchanged after the order has been fulfilled, rescission or after termination of a framework or support contract, this requires the granting of the unlimited right of use; if these are to be changed, updated or used as a basis for further developments by third parties or the client, additionally the granting of the right to processing by third parties. If the client wishes the computer data to be handed over, this requires an additional agreement.
4. Fee for presentations
4.1. All of the designer’s services are for a fee, only the creation of performance, time and cost plans required for making an offer is free of charge.
4.2. The client’s invitation to prepare a presentation with preliminary drafts is considered an order to provide a defined service content. The amount of the presentation fee can be freely agreed and, unless otherwise agreed, includes half of the customary design fee as appropriate remuneration in accordance with §§ 1004, 1152 ABGB. When the presentation is carried out, a presentation assignment is deemed to have been given, accepted and fulfilled.
4.3. If an AG or the organizer of a presentation competition awards no or only a significantly reduced order to the designer or a presentation competitor after the presentation, the designer is entitled to the full design fee instead of the reduced presentation fee.
4.4. The presentation fee does not include the granting of usage rights.
5. Service, external services and production monitoring
5.1. For the provision of the desired service including the transfer of the production data, an appropriate remuneration in accordance with §§ 1004, 1152 ABGB is deemed to have been agreed. The transfer of development data is only part of the service if it has been agreed in writing and for an additional fee.
5.2. The designer is authorized to provide necessary or agreed ancillary services in connection with the order himself for a fee customary in the area or to commission them to third parties in the name and for the account of his client.
5.3. The client can outsource the coordination and supervision of the reproduction / production (as well as color matching or print supervision) to external producer specialists or the designer. They require a separate order and are made for a fee.
6. Return and storage
6.1. The client receives all documents, interim results, drafts, conceptual descriptions and elaborations for their hands. Until the rights of use have been acquired and in the event of rejection (waiver of use), the client is not permitted to make copies of them, save them in computer systems or make them accessible to third parties for viewing or further processing, except for the purpose of decision-making by opinion research institutes.
6.2. Original drafts and computer data are to be returned or handed over to the designer undamaged at the risk and expense of the client as soon as they are no longer required for the agreed use.
7.1. The designer is not liable for slight negligence. In the event of gross negligence, he is responsible for up to the amount of his fee (excluding additional costs and sales tax).
7.2. Defects are to be reported to the designer with a request to rectify them within a reasonable period of time immediately after receipt of the services. Costs that arise when third parties are used despite the willingness of the designer to remedy defects are borne by the client. The right to rework expires after six months.
7.3. The designer assumes no liability for the legal, in particular competition, trademark and administrative law admissibility of the drafts and elaborations. Likewise, he is not liable for the correctness of text and images if work has been approved by the client or a template for checking has at least been offered to the client.
7.4. Insofar as the designer commissions necessary or agreed third-party services in the name of and for the account of the client to third parties, the respective contractors are not vicarious agents of the designer DA.
7.5. The documents provided by the client (photos, texts, models, samples, etc.) are used by the designer on the assumption that the client is entitled to use them and that no rights of third parties are violated during processing or use. According to § 86 UrhG, the client is liable to the designer for every type of unlawful use in double the amount of the fee appropriate for this use, insofar as such was at least negligently made possible or tolerated by him.
8. Attribution and sample evidence
8.1. According to § 20 UrhG, the designer is entitled to affix his name or pseudonym, company name or logo to every work / product he has designed as well as advertising material for it or publications about it. The form and duration of the labeling can be agreed with the client.
8.2. In any case, according to § 26 UrhG, the designer retains the right to use images of the works / products designed by him for the purpose of self-promotion (promotion) in printed form or to make them available on the worldwide Internet for this purpose.
8.3. In the case of three-dimensional objects, the designer is entitled to free copies of the objects that were produced with the help of his design finding, as well as to the handover of a specimen copy, provided the latter is not associated with disproportionately high costs. In the case of printed works, the designer is entitled to at least five copies of the works he has designed.
9. Withdrawal and cancellation
9.1. The client and the designer are entitled to withdraw from the order after submitting the first presentation without giving reasons, whereby the client pays the presentation fee according to point 4.2. GTC DA is to be paid.
9.2. If the client cancels the order during the design or execution phase or within an upright framework agreement for reasons for which the designer is not responsible, or if he reduces the scope of the order, he undertakes to pay the design fee plus the ancillary services and costs incurred up to that point .
9.3. Irrespective of this, the designer is entitled to invoice the client for a fee for provided and unused work capacity and any damage suffered as a result. There is no charging of a usage fee, all rights remain with the designer.
10. Final provisions
10.1. Any agreement that deviates from or supplements the GTC DA, as well as all framework agreements, must be in writing.
10.2. Only Austrian law. The place of fulfillment and jurisdiction is the designer’s place of business.