General Conditions of Contract / GCC of Design Austria (GCC DA)

Applicability

These General Conditions of Contract (GCC) apply to all design contracts (creative services) between Designer, DA and Designer’s Client. They may not be used for the sale of originals or for commercial services.

Basis of the Collaboration

2.1. The basis of every contract is the framework (briefing) provided by Client, whose requirements are to be fulfilled by Designer. Within the briefing, freedom of design is allowed in carrying out the commission.

2.2. Designer shall create the work autonomously and in person, but nevertheless has the right to enlist the services of competent associates or partners.

2.3. Any possible consultancy on the part of Designer must remain strictly within the area of design. Liability for an “expert opinion” is limited to this area, in pursuance of the ABGB (Allgemeines Bürgerliches Gesetzbuch) [General Civil Code of Austria] (Section 1299).

2.4. Client shall ensure that Designer receives in good time and in full all of the documents and details, as well as instructions, which are necessary to optimally fulfil the commission.

3.1. Insofar as nothing else has been agreed upon between Client and Designer, Designer grants Client exclusive use of the work (exclusive right of use), with the exception of any possible programming services

3.2. Upon payment in full of the total fee and additional expenses, Client acquires the agreed right of use for the works created in fulfilment of the commission, in the form in which they are delivered and for the agreed purpose and scope of use. If no agreements have been made as to the purpose and scope of use, the minimum scope necessary for the fulfilment of the commission shall apply. Any other use or further future use shall require Designer’s consent and shall be subject to an additional fee.

3.3. No modification, revision, or imitation of the works provided for use is permissible unless the right to alteration has been granted in writing for an additional fee.

3.4. The rights granted to Client (or in the case of an agent, the agent’s customer) may only be conferred on third parties – either free of charge or in return for payment – with Designer’s express consent.

3.5. Client shall not acquire ownership of the designs, elaborations or computer data. In the case of singular succession, all rights and obligations shall devolve upon the legal successor, but only to the extent agreed by Designer, DA, and the latter’s customer. Any possible extension of the use by the legal successor shall, in any case, require the agreement of Designer, DA.

3.6. A licence for unrestricted right of use shall be required should Client wish to continue using the concepts, ideas, or works which have been developed or designed, in an unaltered form, following the completion of, withdrawal from, or termination of a framework or service contract. If said concepts, ideas, or works are to be altered, updated, or utilised as the basis for further developments by third parties or Client, the granting of the right to alteration by third parties shall additionally be required. An additional agreement shall be required should Client wish to receive and keep the computer data.

Remuneration for Presentations

4.1. All of Designer’s services are to be remunerated, with the exception of the preparation of service, time, and cost proposals needed to make a bid.

4.2. The invitation issued by Client to prepare a presentation with preliminary sketches shall be regarded as a commission to provide a defined specification of services. The amount of the remuneration for the presentation is freely negotiable and, unless otherwise agreed, shall be half of the usual fee for a design, as deemed appropriate in pursuance of Sections 1004 and 1152 of the ABGB. Once the presentation has been made, the presentation contract is deemed to have been awarded, accepted and fulfilled.

4.3. If, upon conclusion of the presentation, Client or the organiser of a presentation competition does not award Designer or another presentation competitor any contract at all, or only one which has been considerably reduced, Designer shall be entitled to the full design fee, instead of the reduced presentation fee.

4.4. The presentation fee does not include any granting of rights of use.

Service, Services Provided by Third Parties, and Production Monitoring

5.1. A suitable payment in pursuance of Sections 1004 and 1152 of the ABGB shall be deemed to be agreed for providing the desired services, including the submission of the production data. The transfer of development data shall only be deemed to be part of the service when this has been agreed in writing in return for an appropriate additional fee.

5.2. Designer is authorised to either provide any necessary or agreed additional services in connection with the contract in return for the customary local remuneration, personally, or to engage third parties on behalf and for the account of Client.

5.3. The coordination and monitoring of the reproduction/production (such as colour matching or print monitoring) may be awarded by Client to external production experts or to Designer. Such services require a separate contract and shall be provided against payment.

Return and Storage

6.1. Client shall receive all documents, intermediate results, designs, conception descriptions, and elaborations on trust. Until Client has acquired the rights of use, as well as in the event of refusal (waiver of use), Client may not make copies of them, store them in computer systems, or make them available to third parties either for viewing or further development, unless the third party is an opinion research institute which has been engaged for decision-making purposes.

6.2. As soon as the original sketches and computer data are no longer necessary for the agreed utilisation, they shall either be sent back or handed over to Designer in an undamaged state at Client’s account and risk.

Liability

7.1. Designer shall not be liable for slight negligence. In the event of gross negligence, Designer must assume liabilities up to the amount of his or her fee (excluding additional expenses and value-added tax).

7.2. Designer must be notified of any deficiencies, with a request for their rectification, within a reasonable period of time immediately after the receipt of the services. Any costs arising from the engagement of third parties to remedy a deficiency despite Designer’s willingness to do this personally must be borne by Client. All claims to rectification shall lapse after a period of six months.

7.3. Designer assumes no liability for the legal admissibility – in particular with regard to competition, trademark and administrative legislation – of the designs and elaborations. Nor shall Designer be liable for the correctness of texts and images when the works have been approved by Client or when the documents have at least been offered to Client for inspection.

7.4. Insofar as Designer enlists the necessary or agreed services of third parties on behalf and for the account of Client, the respective contractors shall not be deemed to be vicarious agents of Designer, DA.

7.5. The documents provided by Client (photos, texts, models, patterns, etc.) shall be used by Designer on the supposition that Client is entitled to use these and that the development or use thereof does not infringe the rights of any third party. For any form of unlawful use, Client shall be liable to Designer in pursuance of Section 86 of the Austrian Copyright Act [Urheberrechtsgesetz (UrhG)] for double the amount of the appropriate fee for this use, inasmuch as such use has at least been enabled through Client’s negligence or tolerance of it.

Naming of Designer and Reference Copy

8.1. In pursuance of Section 20 of the Austrian Copyright Act, Designer is entitled to affix his or her name, pseudonym, company name, or logo to each of the works/products Designer has created, as well as to the advertising materials for or publications about them. The form and duration of the identification may be arranged with Client.

8.2. In pursuance of Section 26 of the Austrian Copyright Act, Designer retains the right, in any case, to use printed images of the works/products he or she has designed for promotional purposes, or to make these images available on the World Wide Web for the same purposes.

8.3. In the case of three-dimensional objects, Designer is entitled to receive visual images of the objects which have been produced with the aid of his or her design solution, free of charge, and to also receive a reference copy, unless the latter involves disproportionately high costs. In the case of printed works, Designer is entitled to a minimum of five copies of the works he or she has designed.

Withdrawal and Cancellation

9.1. Following submission of the first presentation, Client and Designer are each entitled to withdraw from the contract without stating reasons. However, the presentation fee, according to Point 4.2 of GCC DA, shall nevertheless have to be paid by Client.

9.2. Should Client cancel the contract during the design or elaboration phase or within a valid framework agreement for reasons for which Designer is not responsible, or if Client reduces the scope of the contract, Client shall be obliged to pay the design fee plus the additional service fees and expenses which have accrued up to that point.

9.3. Irrespective thereof, Designer shall be entitled to remuneration for work capacity which has been provided but not used and, in any case, to invoice Client for any damages incurred as a result. Remuneration for use shall not apply, and Designer shall retain all rights.

10.

Final Provisions

10.1. These GCC DA, as well as all framework agreements, cannot be modified or supplemented except in writing.

10.2. Austrian law shall exclusively apply. The place of performance and the place of jurisdiction shall be Designer’s place of business.