of the Salzburg Altstadt Tourist Association (Altstadt Verband), hereinafter referred to as AV, and Altstadt Salzburg Marketing GmbH, hereinafter referred to as ASM.
1. Validity
1.1. Contractual bases. These General Terms and Conditions of Purchase and Cooperation shall apply insofar as either AV or ASM obtains services from its contractual partners or cooperates with them, e.g. in the form of a working group. Insofar as AV or ASM provides services to the contractual partners, the General Terms and Conditions of AV and/or ASM shall apply.
AV and/or ASM concludes its contracts and obtains services exclusively on the basis of the contractual partner's written offers as well as any descriptions of goods or services contained in the offer (e.g. individual requirement specifications or general product folders), price lists as well as these General Terms and Conditions of Purchase and Cooperation.
The General Terms and Conditions of Purchase and Cooperation shall automatically form the basis for all further contracts concluded between the AV and/or ASM and the respective contractual partner in the respective current version as of the initial conclusion of the contract even if no express reference is made to the General Terms and Conditions of Purchase and Cooperation.
1.2. Future changes. Changes to the General Terms and Conditions of Purchase and Cooperation of AV and/or ASM shall be notified to the contractual partner in writing and shall be considered as agreed if the contractual partner does not object within 14 days.
1.3. Additional agreements. Additional agreements, reservations, changes, or additions to the contract must be made in writing to be considered valid. This also applies to any deviation from the written form requirement.
1.4. Contract components on the part of the contractual partner. Content coming from the contractual partner that affects the scope of services, such as requirement specifications, will only become part of the contract, even if AV and/or ASM are aware of it, if it has been included in the contractual partner's offer.
Any legal elements originating on the part of the contractual partner, such as general terms and conditions or contractual clauses, shall only become effective, even if AV and/or ASM are aware of them, if they are accepted by AV and/or ASM with an additional note (e.g. “GTC Accepted”) expressly covering these legal elements. Otherwise, AV and/or ASM expressly object to the inclusion of legal elements, such as general terms and conditions or contractual clauses, of the contractual partner.
The mere acceptance by AV and/or ASM of the content of the contractual partner relating to the scope of services shall therefore not result in AV and/or ASM accepting any legal elements of the contractual partner, even if such content relating to the scope of services contains legal elements (such as “Our GTC shall apply”).
1.5. Procedure in case of contradictions. In case of contradictions between other contract contents and the General Terms and Conditions of Purchase and Cooperation of AV and/or ASM, these shall apply in the order stated. More individual contractual elements such as offers therefore take precedence over more general contractual elements such as the General Terms and Conditions of Purchase and Cooperation.
However, in the event of contradictions between contractual elements of AV and/or ASM and contractual elements of the contractual partner, the contractual elements of AV and/or ASM shall take precedence.
1.6. Procedure in case of invalidity. If individual provisions of the contract or individual contractual elements should be invalid, this shall not affect the validity of the remaining provisions. The invalid provision must be replaced by a valid provision that comes as close as possible to its economic meaning and purpose.
2. Conclusion of contract
2.1. Offer by the contractual partner. If the contractual partner makes an offer to AV and/or ASM, the contractual partner shall be bound by this offer for four weeks from its receipt by AV and/or ASM.
2.2. Offer by AV and/or ASM. If AV and/or ASM issue a purchase offer to the contractual partner, this purchase offer shall be non-binding and non-committal. If the contractual partner accepts the purchase offer, he shall also be bound by this acceptance for four weeks from its receipt by AV and/or ASM.
2.3. Acceptance by AV and/or ASM. The contract is therefore only concluded in any case upon confirmation of the acceptance or the offer by AV and/or ASM.
The confirmation must always be made in written form, e.g. by order confirmation, unless AV and/or ASM indicates that AV and/or ASM has accepted the contract, e.g. by taking action that is evident to the contractual partner.
3. Scope of services, order processing
3.1. Place of performance The place of performance shall be the registered office of AV and/or ASM.
3.2. Scope of services. The scope of the services to be rendered shall be defined in the written service description of the offer accepted or made by AV and/or ASM.
3.3. Prohibition of partial services. The contractual partner is not authorized to provide partial services. Any interim acceptances are therefore for purposes of quality assurance only.
3.4. Fixed deadlines. Deadlines are, unless expressly agreed otherwise in writing, fixed deadlines after the expiry of which AV and/or ASM are entitled to withdraw from the contract without setting a grace period.
3.5. Obligation of the contractual partner to provide information. The contractual partner must check all orders and information in detail and point out any errors, confusion, ambiguities, incompleteness, optimization potential, newer technical developments and the like to AV and/or ASM.
The contractual partner must also provide AV and/or ASM with all other information that is of importance for the execution of the order, even if this information only becomes known during the execution of the order.
If in doubt, the contractual partner shall execute the version that is most advantageous for AV and/or ASM and their customers.
3.6. Obligation of legally compliant execution. The contractual partner must perform all services in accordance with the law.
In the event that services of the contractual partner are intended by AV and/or ASM for export to a target country known to the contractual partner, the services are to be performed in such a way that legally compliant export and legally compliant use in the target country are possible.
3.7. Cooperation duties of AV and/or ASM. If AV and/or ASM do not properly fulfill their duties to cooperate, the contractual partner shall inform not only his contact person at AV and/or ASM who is responsible for this, but also the management of AV and/or ASM in a timely manner so that the execution of the order as agreed is not jeopardized.
3.8. Use of subcontractors. The contractual partner is authorized to perform the services himself or to use employees or expert third parties to perform the services. If third parties, e.g. subcontractors, are used, these are vicarious agents of the contractual partner.
In the event that the contractual partner performs the services through employees or third parties, the contractual partner is obligated to inform AV and/or ASM of the name, company, address, telephone number and e-mail address of the employees or these third parties prior to commencing performance of the services.
3.9. Obligation to coordinate. If the services of the contractual partner are part of a larger scope of services in which, for example, AV and/or ASM, the customer of AV and/or ASM or other contractual partners of AV and/or ASM are also involved, the contractual partner must coordinate itself independently with the other parties involved to the extent that there are points of contact between the partial services.
3.10. Obligation to maintain documentation. The contractual partner is obligated to document his services professionally and above all in such a way that AV and/or ASM would be able to commission another specialist company with the continuation of the services at any time. The contractual partner must submit the documentation to AV and/or ASM at the time the order is concluded and at any time upon request.
3.11. Right to source materials and intermediate results. Upon completion of the services or otherwise upon request, the contractual partner shall transfer to AV and/or ASM all source materials (e.g. raw data) and intermediate results (e.g. Photoshop files) necessary for the provision of the services and shall completely return any information and materials provided by AV and/or ASM and completely destroy any copies thereof.
3.12. Freedom from the rights of third parties. Transfer of rights. The contractual partner must perform all services in such a way that they are free of third-party rights and transfer all rights to the services to AV and/or ASM exclusively as well as temporally, locally and in scope without restriction.
In the event that it is not possible to perform the services in such a way that they are free of the rights of third parties (e.g. when using copyrighted or patent-protected components), the contractual partner must first check whether the rights necessary for use within his services exist and then inform AV and/or ASM of the legal situation and obtain the consent of AV and/or ASM as well as a list of the third-party rights and proof of the third party's consent to the use by AV and/or ASM (e.g. in the form of an individual written consent, a written license agreement or proof of a working method ensuring the consent (e.g. business card method for photos)).
The violation of the rights of third parties during execution is in any event inadmissible (and the consent of AV and/or ASM is not possible). If claims are made against AV and/or ASM by third parties due to violations of rights by the contractual partner, the contractual partner shall be obliged to indemnify AV and/or ASM and hold them harmless.
3.13. Prohibition of referencing. The contractual partner is not authorized to use data such as customer names, project descriptions, project illustrations and the like in the context of a reference list or other advertising media without the express written consent of AV and/or ASM.
3.14. Contact with customers of AV and/or ASM. In principle, the contractual partner is prohibited from contacting the customers of AV and/or ASM directly. However, AV and/or ASM shall be entitled to instruct the contractual partner to establish direct contact and to observe certain rules of conduct, e.g. acting as an employee of AV and/or ASM, addressing the customer, clothing regulations, holding appointments at the premises of AV and/or ASM, using the means of communication of AV and/or ASM, documentation in the CMS of AV and/or ASM.
4. Remuneration
4.1. Prices. All prices are quoted in Euro without value added tax. They are only valid for the present order.
4.2. Cost estimates. Cost estimates of the contractual partner are binding.
4.3. Lump sum prices. All prices are lump sum prices which include all services necessary for the execution of the order.
4.4. Settlement according to expenses. The settlement of services according to actual expenses is only permissible if this has been agreed without doubt between the contractual partners, e.g. “Settlement according to expenses”.
5. Payment
5.1. Payability. The invoices of the contractual partner are due at the earliest from the date of invoice. AV and/or ASM shall pay the contractual partner's invoices within 30 days of the due date at the latest.
5.2. Prohibition of advance and partial invoices. The contractual partner is not authorized to demand aliquot advances to meet his expenses or to charge partial services.
5.3. Prohibition of offsetting and retention. The contractual partner is not authorized to set off his own claims against claims of AV and/or ASM unless the contractual partner's claim has been acknowledged in writing by AV and/or ASM or has been established by a court. Any right of retention of the contractual partner is excluded.
6. Fiduciary duties, obligation to secrecy, prohibition of competition, non-solicitation agreement
6.1. Fiduciary duties. The contractual partner is obligated to promote the reputation of AV and/or ASM and in particular not to criticize AV and/or ASM towards third parties. This obligation shall continue to apply beyond the end of any contract.
6.2. Conflicts of interest. The contractual partner is obligated to report to AV and/or ASM as soon as possible any conflicts of interest that go beyond a mere activity of the contractual partner for third parties and could affect the interests of AV and/or ASM more than only marginally.
6.3. Obligation of secrecy. The contractual partner is obligated to maintain secrecy about all information he receives within the scope of this contractual relationship about AV and/or ASM and/or their services, in particular about the procedures and techniques used by AV and/or ASM, about the customers and interested parties as well as about the other business partners of AV and/or ASM unless the information is expressly intended for dissemination by AV and/or ASM or the provision for dissemination is not already determined without doubt by the manner in which the information is made available (e.g. information from end customer advertising folders or from the end customer website).
This applies both to information which becomes known directly to the contractual partner of AV and/or ASM as well as information which becomes known to the contractual partner via third parties. Confidentiality must also be maintained regarding the existence of a contractual relationship between AV and/or ASM and the contractual partner.
In addition, all information subject to secrecy shall be kept secure and protected from unauthorized access.
After the end of the contract, all information shall be returned to AV and/or ASM completely, without request, and free of charge and any copies shall be destroyed.
These obligations shall continue to apply beyond the end of any contract.
6.4. Prohibition of competition. The contractual partner shall undertake not to compete with AV and/or ASM with their existing customers. This obligation shall apply for a period of three years beyond the end of any contract
6.5. Non-solicitation agreement. The contractual partner agrees not to solicit any employees of AV and/or ASM. This obligation shall apply for a period of three years beyond the end of any contract
6.6. Contractual penalty. In the event of a violation of these prohibitions or obligations, the contractual partner shall pay a contractual penalty of EUR 10,000.00 per violation.
6.7. Transfer to employees and subcontractors. The contractual partner shall also impose identical prohibitions or obligations in favor of AV and/or ASM on his employees to the extent possible under labor law and on his subcontractors commissioned with subcontracts in matters of AV and/or ASM.
Concerning the transfer of the prohibition of competition to subcontractors, it is sufficient if the prohibition of competition for the subcontractor only includes the respective customers of AV and/or ASM who are the object of the order.
7. Liability
7.1. Framework of liability. The contractual partner shall be liable for his services within the framework of the law to the extent that this is not amended in the following.
7.2. Burden of proof. The burden of proof shall be borne in any event by the contractual partner, except in the event that it would become impossible for the contractual partner to provide proof due to the proximity of AV and/or ASM to the evidence.
7.3. Transfer of risk. Transport insurance. The place of performance shall be the registered office of AV and/or ASM.
On delivery or dispatch of goods by the contractual partner, the risk shall always pass to AV and/or ASM only upon delivery of the goods to AV and/or ASM.
If the value of the services to be delivered or dispatched exceeds the standard transport insurance, the contractual partner shall take out additional transport insurance.
7.4. Obligation to give notice of defects. The obligation to give notice of defects on the part of AV and/or ASM is excluded.
7.5. Recourse to liability. In the event that services of the contractual partner are intended for resale to third parties by AV and/or ASM as agreed, AV and/or ASM shall be entitled to recourse against the contractual partner even after expiry of the other statutory or contractually granted liability claims up to six months after the timely assertion of statutory as well as contractually granted liability claims of the third party against AV and/or ASM.
7.6. Guarantees to third parties. Should AV and/or ASM provide the contractual partner with a special guarantee as agreed with the contractual partner in the event of resale to third parties, the contractual partner must assume the guarantee in the event of a guarantee claim.
7.7. Fixed installation at the premises of third parties. Should services of the contractual partner be provided by AV and/or ASM as agreed for fixed installation at a location known to the contractual partner, e.g. in a building or in a mobile system at the premises of a third party, or should this result from the type of service provided, the contractual partner shall be obligated, in the event of liability, to carry out such services on site in the event of replacement or repair or to bear the frustrated costs of installation and removal in the event of conversion.
7.8. Obligation to insure. The contractual partner is obligated to maintain sufficient business and pecuniary damage liability insurance and to provide proof of this to AV and/or ASM upon request.
7.9. Claims of the contractual partner. Claims for damages by the contractual partner are excluded unless they are based on intent or blatantly gross negligence on the part of AV and/or ASM. The contractual partner shall bear the burden of proof for the existence of blatantly gross negligence and/or intent.
8. Concluding provisions
8.1. Applicable law. The legal relationships between the contractual partner and the AV and/or ASM shall be governed exclusively by Austrian law under exclusion of the international reference standards. The provisions of the UN sales law do not apply.
8.2. Jurisdiction. The place of jurisdiction for all disputes arising directly between AV and/or ASM and the contractual partner shall be the factually competent Austrian court in Salzburg. However, AV and/or ASM are also entitled to take legal action at the general place of jurisdiction of AV and/or ASM and the contractual partner.