1. The following General Terms and Conditions apply only to contracts drawn up between Verlag Holzhausen GmbH (hereinafter called the “publishing company”) and customers for the publication of one or more advertisements for the purpose of dissemination in a printed medium and to contracts for the execution of inserts in magazines, and to subscriptions.
2. The terms of payment and business and additional conditions apply mutatis mutandis to advertisements placed in on-line media or via digital, mobile and any other channels of utilization and dissemination that may become technically feasible in future, etc.
Placement of orders
1. The order confirmation issued by the publishing company, the General Terms and Conditions, the current advertising price list and the General Conditions of Advertising of the Österreichischer Zeitschriftenverband shall form – in that sequence – the legal basis for all orders. Should any individual provision be invalid, the validity of the remaining provisions shall not be affected.
2. In the case of any change to the advertising rates, the new conditions and prices shall apply with immediate effect, also to orders pending, unless explicitly agreed to the contrary. Any additional agreements which differ from the General Terms and Conditions shall only be legally effective if made in writing and duly signed and sealed on behalf of the publishing company.
3. Any oral agreements entered into by the publishing company’s sales and service personnel which deviate from the above legal foundations shall only be legally binding on the publishing company if confirmed in writing and duly signed and sealed on behalf of the publishing company. Customers’ general terms and conditions which differ from those of the publishing company cannot be accepted and are not relevant for the contract.
4. The publishing company reserves the right to refuse advertising orders at its own discretion, including orders for individual advertisements within a collective order, in particular due to reasons of content, origin or technical form. Any such rejection shall be communicated to the Customer as soon as possible.
5. Proofs shall only be supplied at the Customer’s explicit request. The Customer is responsible for the correctness of the returned proofs. Should the Customer fail to punctually return proofs which have been sent in good time, he shall be deemed to have given permission to print.
Handling of orders
1. Advertisement orders shall be executed within a one-year period. No guarantee can be given for the inclusion of advertisements in specific numbers or editions or in specific positions. Position requests are only binding on the publishing company where a preferred position surcharge has been agreed. In other cases, the publishing company shall try to meet position requests as far as possible. If an advertisement is placed in a different position or edition, the Customer shall have no claim to a price reduction nor to damages. In such cases, no preferred position surcharge shall apply.
2. If an order cannot be executed in whole or in part due to force majeure or for reasons beyond the control of the publishing company, no claim for compensation or indemnity of any kind whatsoever can be entertained by the publishing company. The Customer shall pay the full price if the order is executed with at least 75% of the promised circulation.
3. The publishing company guarantees technically perfect reproduction of the advertisement. If the Customer is responsible for providing the printing materials, he shall ensure that they are made available in a suitable form, in undamaged condition and in good time. The publishing company can accept no responsibility for the suitability of printing materials created and provided by the Customer himself, nor for the costs of producing finished artwork or deviations in the quality of the printing resulting from their properties, nor any errors of content in such materials. Nor does the publishing company have a duty to check and/or warn.
4. If defects in printing materials provided by the Customer are not immediately apparent and are only detected after the first printing, the Customer shall have no claim for compensation or indemnity. Color deviations in the case of colored advertisements can be explained in terms of the printing process and do not justify any claims for compensation.
Additional conditions specified by the publishing company:
a) Receipt of orders
1. No responsibility can be accepted for the correctness of advertisements ordered by telephone nor for unclearly written copy. In the case of orders placed or changed by telephone, the Customer shall bear the risk of error (e.g. mishearing, typographical errors, etc.) and shall have no claim to a price reduction nor any other claims.
2. The content and form of the advertisement are the responsibility of the Customer.
1. The Customer guarantees and is responsible for ensuring that the advertisement does not infringe any legal norms, is not contra bonos mores or detrimental to the publishing company’s good reputation, that it meets the technical requirements and complies with all legal requirements (e.g. unfair competition law, gambling law levy, etc.), and that it does not infringe any third-party rights (e.g. intellectual property rights relating to copyright or brand protection with regard to photographs, graphics, sound recordings, video recordings, etc). When offering commercial services, the Customer shall guarantee compliance with the legal requirement to declare the nature of his company’s business pursuant to Art. 63 GewO (Trade Ordinance), Art. 6 para. 1 of the ECommerce Act (ECG) for online media, and all other legal requirements relating to mobile and digital media, etc.
2. Should the Customer fail to meet this business declaration requirement, the publishing company reserves the right to refuse to accept the advertisement and/or, if it is reasonably suspected that a law has been violated, to notify upon request the Customer’s name and address to the Association against Unfair Competition (“Schutzverband gegen unlauteren Wettbewerb”) and the bodies authorized to institute legal proceedings in accordance with Art. 14 para. 1 (2 and 3) UWG (Unfair Competition Act).
3. The publishing company reserves the right to refuse to print advertisements that are or have been a subject of complaint by the Austrian Advertising Council, including the right to discontinue an ongoing campaign. In such cases, the publishing company shall be entitled to reject advertising orders and to terminate orders that are already the subject of a legally binding contract.
4. The Customer shall indemnify and hold harmless the publishing company and its employees in relation to all claims based on a published advertisement (including claims asserted by competitors of the publishing company and placement costs resulting from a court-ordered right of reply) and shall make full amends for any disadvantages they may suffer. The publishing company and its employees are not bound to conduct any checks on advertisements or requests for right of reply, but they are entitled to make legally necessary changes to an advertisement even without prior consultation with the Customer.
c) Complaints: Complaints of any kind must be lodged in writing within eight days of publication of the advertisement. Otherwise all claims for compensation or indemnity shall be forfeited.
d) Advertisement orders shall not be binding on the publishing company, regardless of who has accepted them, unless submitted and confirmed in writing.
e) Storage of printing materials: The obligation to store printing materials terminates three months after the last advertisement is published unless explicitly agreed otherwise. Printing materials will only be returned on request.
f) Warranty and defects: Print errors that do not significantly compromise the meaning of the advertisement shall not justify any claims for compensation against the publishing company. The publishing company reserves the right to abbreviate words as long as the meaning of the advertisement is not distorted. Nor shall incorrectly printed control data justify any claims for compensation. The publishing company declines all liability for any damages that arise due to the non-appearance of an order on a given day (expect in the case of explicitly agreed placement dates, etc.) or due to print errors. The publishing company shall only be liable in cases of gross negligence and intent. All additional liability, e.g. for loss of earnings, loss on interest, consequential damage, third-party damage, etc. is excluded. The publishing company accepts no liability for damaged or lost data or data files. The publishing company shall not be held responsible in cases of force majeure (transportation delays, operational stoppages, etc). The publishing company shall be entitled to claim payment in full if the accepted advertisement is published within a reasonable period of time following the resumption of normal operations. The publishing company shall be given two opportunities for subsequent performance within a reasonable period of time. Only after two unsuccessful attempts at subsequent performance or rejection of subsequent performance by the publishing company is the Customer entitled to lodge further claims (price reduction, cancelation of contract) in accordance with the legal provisions. In all cases, liability on the part of the publishing company shall be limited to the amount paid for the order concerned.
g) Advertisement prices and terms of payment: The advertising rates listed in the current tariffs for the relevant field of advertising apply. In the case of any change to the advertising rates, the new prices shall apply with immediate effect, also to orders pending. The invoice and voucher will be issued on the fifth day of the month following publication of the advertisement at the latest. All invoiced amounts shall be paid without any deductions within thirty days unless otherwise agreed in writing. In the event of default in payment, the Customer will be charged interest on arrears at 5% above the one-month EURO Interbank Offered Rate (EURIBOR). The publishing company shall be entitled to defer execution of current and further orders placed by a Customer in default until full payment of the amount due has been made. The publishing company reserves the right to invoice the Customer for any unpaid advertising taxes subsequently levied by the tax authority. Any costs incurred due to extra-judicial or court proceedings shall be borne by the debtor. The invoice shall be accompanied by a voucher copy. Should it no longer be possible to obtain a voucher copy, the publishing company shall provide a statement of publication instead. This applies unless explicitly agreed otherwise.
The Customer shall only be entitled to a discount in the case of a written agreement, e.g. to place several advertisements within a one-year period. If so desired by the Customer and approved by the publishing company, the discount can be included in the invoice or it can be credited to the Customer’s account at the end of the period of the order or the year. A written request for the final account is to be made within three months of that date.
In addition to the price of the advertisement as listed in the current advertising tariff, the Customer shall also be responsible for payment of all dues and taxes (e.g. advertising tax, value-added tax, etc). Invoice queries will only be accepted if notified within two weeks of receipt of the invoice.
Voucher copies shall be provided free of charge on request, but a complete copy of the publication will only be provided where justified by the type and size of the order. Prior to publishing the advertisement ordered or further advertisements in a collective order, and also during the period of the order, the publishing company shall be entitled to insist on an advance payment and on settlement of any previous accounts. Entitlement to a retroactive discount shall cease to apply if not asserted within one month of the end of the one-year period.
h) Third-party advertising: Advertisements (including inserts) may only serve to promote the Customer’s own products or services. Contracted advertising space is not transferable, and third-party advertising is only permitted with the publishing company’s explicit prior agreement in writing. In the case of an infringement of this provision, the Customer shall immediately pay a strict liability penalty in the amount of double the price of the advertisement as per tariff for each infringement. The publishing company’s other statutory claims (e.g. claims for damages) shall remain unaffected.
i) Agency commission: Any services which would justify, for example, a fifteen percent agency fee or commission must be agreed in writing. Such services comprise the acquisition of the order itself, delivery of the printing materials in print-ready form or electronic delivery of the finished advertisement, assumption of the del credere liability, and liability in copyright law.
j) In the case of composition or bankruptcy proceedings all discounts shall be automatically cancelled.
k) Cancellation: Cancellations can only be accepted if made in writing by the ad closing date. Thereafter a cancellation fee shall be charged in the amount of thirty percent of the value of the order. Any costs resulting from changes made to the original advertisement agreement and/or printing materials shall be charged to the Customer.
l) Intellectual property rights: All rights relating to advertisements created by the publishing company with regard to the idea, concept, design, layout, title, copy, photographs, etc. shall remain with the publishing company unless otherwise explicitly agreed in writing with the Customer in the individual case.
m) Secrecy and data protection: The Customer shall treat all data and information provided (e.g. passwords, user names, media data, etc.) with absolute confidentiality, shall store them safely and shall not diverge them to third parties. Should that nevertheless prove necessary, the Customer shall only communicate such data to persons who have themselves made a formal commitment to full secrecy. This duty of secrecy shall continue to apply on termination of the contractual relationship between the Customer and the publishing company. The Customer shall indemnify and hold harmless the publishing company for any damage (including all legal costs) resulting from infringement of this duty of secrecy.
n) Place of performance, jurisdiction and choice of law: The place of performance shall be Vienna. In the case of any dispute arising out of the contractual relationship, the competent court at the District Commercial Court in Vienna shall have sole jurisdiction and Austrian law shall apply, excluding any and all principles on conflicts of law pursuant to Austrian private international law and the United Nations Convention on Contracts for the International Sale of Goods. For consumer business transactions, Art. 14 of the Consumer Protection Act shall apply.
o) Miscellaneous and severability clause: No subsidiary agreements, changes or additions to these General Terms and Conditions shall be valid nor any waivers therefrom unless made in writing. Should any provisions of these General Terms and Conditions be or become invalid, the validity of the other provisions shall remain unaffected. Any ineffective provision shall be replaced by an agreed alternative provision that corresponds as closely as possible in intention and commercial effect. This also applies in the case of any omissions in the provisions.
A subscription is always valid for one year unless explicitly agreed to the contrary. Notice of cancellation must be given in writing thirty days before the end of the subscription year at the latest, such notice to be sent by post (attn. Subscription Department), fax (ext. 466) or e-mail (abo@). If no cancellation is received by that date, the subscription is automatically renewed for a further year at the current annual subscription rate. verlagholzhausen.at
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