For all transactions (for so-called agency contracts special terms and conditions apply (STC)) conducted between the customer and AUGMENTAIO GmbH these General Terms and Conditions will apply solely. Opposing terms and conditions as set out by the customer are valid only following express and written acknowledgement by AUGMENTAIO. Agreements which supplement or deviate from the present Terms and Conditions must be in written form. If certain provisions within these Terms and Conditions be invalid, this will have no effect on the binding force of the provisions remaining or of any agreements based on them. The invalid provision will be replaced by a valid one which most closely expresses its sense and purpose. Supplements to an agreement are only mandatory, if confirmed by mail or postal. Oral statements are generally non binding.
2. Conclusion of a Contract
Offers from AUGMENTAIO are without obligation. Orders from the customer are considered as accepted only following written order confirmation by AUGMENTAIO, provided that AUGMENTAIO does not communicate its acceptance of the order by, for example, performing activities in connection with it.
3. Performance and Payment
Provided no other agreement has been made, AUGMENTAIO is entitled to payment for each single service following performance thereof. AUGMENTAIO is entitled to claim advance payments to cover costs. Services performed by AUGMENTAIO for which payment is not expressly covered by the agreement, are to be agreed and remunerated separately. This applies especially to all auxiliary services performed by AUGMENTAIO. All cash expenditures made by AUGMENTAIO which exceed the usual business expenses (e.g. courier services, exceptional shipping costs, and similar expenses) will be reimbursed by the customer. Cost estimates submitted by AUGMENTAIO are strictly without obligation. If it can be foreseen that costs estimated in writing by AUGMENTAIO will be exceeded by more than 20 percent, AUGMENTAIO will inform the customer in writing of such increased costs. Costs exceeding those estimated are considered as accepted if the customer does not submit a written objection within three days of receiving said information and simultaneously inform about more favorably priced alternatives. All works performed by AUGMENTAIO, which, for reasons lying in the responsibility of the contractor, are not brought to completion, will be invoiced as per contract. Payment by the customer for such work does not entitle him to any rights thereof, moreover, uncompleted drafts, layouts etc. to be returned without delay to AUGMENTAIO.
4. third party services
AUGMENTAIO is allowed to call in a third party to fulfill the contracted services. In case a third party is contracted directly by the client, the client is obliged to indemnify AUGMENTAIO from any obligations regarding the inner relationship between both parties that arise from the contract with the third party provider, especially regarding the obligation to pay for the third party service.
For presentations requested by the customer AUGMENTAIO is entitled to receive an appropriate fee covering at least the costs of personnel, material and external services incurred by AUGMENTAIO. In the case that the customer does not give an order to AUGMENTAIO following the presentation, all services performed by AUGMENTAIO, especially the presentation documentation and its contents, remain the property of AUGMENTAIO; the customer is not entitled to make further use of these in any form. Furthermore, the documentation is to be returned to AUGMENTAIO without delay. Should the ideas and concepts for the realization of communication tasks, which are used during the presentation, not appear in the advertising material or other products generated by AUGMENTAIO, the agency is entitled to use such presented ideas and concepts to other purposes. The dissemination of presentation documents to third parties, as well as their publication, duplication or other such distribution is not permitted without express permission from AUGMENTAIO.
6. Property Rights and Copyright
All services performed by AUGMENTAIO including those deriving from presentations (e.g. proposals, ideas, sketches, preliminary drafts, scripts, final artwork, concepts, negatives, slides, electronically stored photographs, offers, etc.), even extracts thereof remain, as do single samples of artwork and original drafts, the property of AUGMENTAIO and may be reclaimed by AUGMENTAIO at any time. Payment of the fee entitles the customer only to the right of use (including duplication) for the agreed purpose in the scope of use agreed. Changes effected by the customer in the services performed by AUGMENTAIO may only take place following express authorisation by AUGMENTAIO and – insofar as these services are subject to copyright – by the originator. For the use of services performed by AUGMENTAIO which go beyond the originally agreed purpose and scope – independent of the copyright status of the service – authorisation by AUGMENTAIO is required. For such services AUGMENTAIO and, if applicable, the originator protected by copyright, are entitled to appropriate payment; appropriate is principally the fee agreed in the service order. The copyrights to services performed by AUGMENTAIO are not transferrable and remain the property of AUGMENTAIO.
AUGMENTAIO is entitled to refer to AUGMENTAIO and, if required, to the originator, with no claim to compensation on the part of the customer.
All services performed by AUGMENTAIO (especially all preliminary drafts, sketches, final artwork, copies, texts, etc.) are to be reviewed and released in writing by the customer within three days. Should release not be given on time the work submitted by AUGMENTAIO shall be considered to be authorised by the customer. The customer will undertake special review of the legal admissibility, especially in terms of competition and trademark laws, of the services performed by AUGMENTAIO. AUGMENTAIO will undertake an external legal audit only following written request by the customer. Costs incurred in this will be borne by the customer.
AUGMENTAIO shall make every effort to perform within the deadlines agreed. Non-observance of a deadline entitles the customer to compensation within existing legal provisions, however, only if a deadline extension of at least 14 days was agreed. This deadline begins with the receipt of a reminder addressed to AUGMENTAIO. Verifiably unavoidable or unforeseeable events, especially delays by contractors of AUGMENTAIO, release AUGMENTAIO in any case from the deadline agreed. AUGMENTAIO is obliged to inform the customer without delay about such events.
10. Payments, Reservation of Proprietary Rights
Invoices from AUGMENTAIO are payable promptly following the date of invoice, without discount, insofar as no other agreement has been made. In the case of overdue payment default interest at the statutory rate applies. Delivered goods remain the property of AUGMENTAIO until full payment has been made. The customer may offset overdue amounts only against undisputed or legally determined claims or make use of his right to retention.
11. Guarantee and Compensation for Damages
AUGMENTAIO guarantees that the service to be performed is as specified in the contract and exhibits no faults which reduce or annul its value or suitability during normal use or the use intended by the contract.
In the case of faults which may arise, the customer must make a written claim and fully justify damages at the latest within five working days following performance of the service. AUGMENTAIO fulfils the guarantee through rework or a fault-free service performance. Should the fault fail to be eliminated within a period of 10 days, the customer may exercise his legal rights acc. to §§634, 635 BGB (German Civil Code) or, following expiry without success of a reasonable period of time documented in writing, give the order to eliminate the faults to another business organization or instruct its own employees with this task, both at the expense of AUGMENTAIO.
Damage claims by the customer, especially for reason of overdue performance, inability to perform, positive violation of contractual duty, insolvency at the time of contract closure, faulty or incomplete performance, subsequent damage as a result of faulty performance or due to unauthorized activities are excluded, insofar as they were not based on intention or gross neglect on the part of AUGMENTAIO.
The agency is liable to the extent permitted by law only for intention and gross negligence.
AUGMENTAIO will perform with due diligence the work it is assigned with reference to expert and commercial standards and notify the customer on a timely basis of significant, recognizable risks. Compliance with statutory guidelines, especially those relating to competition law, including advertising activities proposed by AUGMENTAIO, is, however, the responsibility of the customer himself.
13. Third party cloud services and webhosting
Regarding third party cloud services and webhosting, additionally to the terms and conditions of AUGMENTAIO, the terms and conditions of the third party provider apply. As soon as data is placed on the third party servers, AUGMENTAIO is only the intermediary between both parties. AUGMENTAIO does not have any influence on client data placed on third party servers. Therefore, AUGMENTAIO does not take any responsibility that uploaded content is free from opposing rights of third parties or legal in the future. Herewith the client releases AUGMENTAIO from any compensation claim of third parties regarding inaccessible server data upon first request.
14. Applicable Law
Only German law applies to the legal relationship between the customer and AUGMENTAIO.
15. Place of Performance and Court of Jurisdiction
Sole court of jurisdiction for all disputes between the parties arising from or in connection with an agreed contract between them – insofar as the law permits – the court of jurisdiction for the AUGMENTAIO headquarters.