General Terms and Conditions
General Terms and Conditions of GoLive Marketing GmbH (referred to in the following as “Agency”)
The following Terms and Conditions shall apply to all contracts, deliveries and other services unless amended with the express written consent of GoLive Marketing GmbH. Any terms and conditions of the customer that deviate from these Terms and Conditions shall be legally ineffective in this respect unless confirmed in writing by GoLive Marketing GmbH. Acceptance of the services of the Agency shall in all cases be deemed to constitute acceptance of these General Terms and Conditions.
2. Quotation and conclusion of contract
2.1 All quotations are always provisional. Obvious mistakes and typing, printing and calculation errors shall not be binding on GoLive Marketing GmbH.
2.2 Quotations given by GoLive Marketing GmbH may only be passed on to third parties with the express written consent of GoLive Marketing GmbH (see in particular point 12.1 below).
All prices quoted per participant as well as prices quoted for all other deliveries and services are prepared on the basis of price lists and prices quoted by the relevant service providers; in the case of foreign service providers, the prices may also be based on the exchange rate on the date of the quotation. No guarantee can be given for the correctness of this price information.
2.4 All cost calculations are subject to the minimum number of participants stated in the quotation or the briefing; deviations from this number of participants or from the other specifications shall entitle GoLive Marketing GmbH to adjust the budget to the actual number of participants and other parameter changes. Significant budget deviations arising from an increase or decrease in the number of participants shall be notified automatically to the customer in writing by GoLive Marketing GmbH if the period of time between determination of this increase or decrease and the start of the event permits a revision of the budget at its own reasonable discretion. Alternatively, this revision can be made in the final invoice if the planned number of participants deviates at short notice from the number of participants determined at the start of the event. Deviations are permissible within the submitted budget plans and GoLive Marketing GmbH shall be entitled to reallocate the costs between the individual items, provided the agency fee is not changed. Cost calculations and budget plans are in general to be understood as estimates prior to the quotation agreement being signed; agency services shall be invoiced according to the actual time worked, whereby the agency shall notify the customer in writing when 50% and 75% of the budgeted agency hours have been reached.
2.5 For the concept planning of event and travel programmes or other services performed by GoLive Marketing GmbH upon written request by the customer within the framework of an invitation to tender, GoLive Marketing GmbH shall charge a fee of 1% of the specified budget, with a minimum fee of €1,000.00. If a budget is not specified, the quoted order value shall be taken as the reference value. The concept planning fee shall be payable upon notification of cancellation; it shall be waived upon placement of order.
2.6 Subsidiary agreements and amendments to existing contracts require written confirmation by both parties.
2.7 The contract shall be deemed to be legally concluded when GoLive Marketing GmbH confirms acceptance of the order in writing or when the delivery or service has been performed. GoLive Marketing GmbH undertakes, however, to inform the other party without delay if it chooses to decline the order.
2.8 If, in the course of business, the prime costs increase after conclusion of the contract, GoLive Marketing GmbH shall be entitled to adjust the agreed prices by the verifiable increase. In the event of changes in exchange rates, the following provisions shall apply:
– Where the customer has made the agreed deposit payment to cover the obligations that are to be fulfilled by GoLive Marketing GmbH in a foreign currency, the exchange rate applicable on the day following receipt of the deposit payment shall be used as the basis for the final invoice.
– Where a deposit payment has not been made by the customer, the exchange rate applicable on the date on which GoLive Marketing GmbH fulfilled the foreign obligations shall be used as the basis for the final invoice. Any costs for hedging the exchange rate risk shall be borne by the customer.
3. Withdrawal from the contract
3.1 Cancellations or withdrawal from the contract must always be made in writing; the effective date shall be the date on which the cancellation is received by the Agency during normal business hours.
3.2 If the customer withdraws without justification from the contract after placing the order for a reason not attributable to GoLive Marketing GmbH, GoLive Marketing GmbH shall be entitled to the following percentages of the agreed agency fee, plus VAT, as compensation for lost earnings, depending on the time of withdrawal:
– after placing the order: 30%
– up to 120 days before the start of the event: 50%
– up to 90 days before the start of the event: 70%
– up to 60 days before the start of the event: 80%
– up to 30 days before the start of the event: 90%
– fewer than 30 days before the start of the event: 100%
3.3 The customer has the right to provide evidence that the actual loss of earnings was lower. GoLive Marketing GmbH shall be entitled to claim higher proven damages.
3.4 All costs and agreed remuneration for agency expenses incurred up to the time of cancellation as well as all third-party costs, cancellation costs and withdrawal costs shall in all cases be paid in full within 10 days of receipt of the invoice by the customer. After this payment deadline, the claims asserted shall be increased by the bank credit rates applicable at the time due for receipt of payment at GoLive Marketing GmbH.
3.5 Advance payments made to service providers by GoLive Marketing GmbH from deposit payments made by the customer shall be refunded to the customer to the extent that they are repaid to GoLive Marketing GmbH by the relevant service providers. GoLive Marketing GmbH shall not be obliged to take legal action against service providers for the repayment of advance payments. GoLive Marketing GmbH shall assign any claims in this respect to the customer. The customer shall accept this assignment. The cancellation regulations of third-party suppliers shall normally apply to their services; in all cases, however, 30% of the respective sales revenue shall apply.
3.6 In the event of postponement of the event date by the customer up to 60 days before the start of the event, 10% of the agreed order value / agency fee shall be incurred as a rebooking fee plus all own and third-party costs incurred in connection with the rebooking if the event is organised within the next 6 months. If there are more than 6 months between the original and the new event date, GoLive Marketing GmbH shall be entitled to claim costs in the amount of the percentages stated under point 3.2.
3.7. The Agency reserves a (partial) right of withdrawal in the event of a delay in payment or breaches of important provisions of this agreement (confidentiality etc.) on the part of the customer.
4. Withdrawal due to force majeure
4.1 Any significant impediment, hazard or impairment due to unforeseeable and exceptional circumstances such as war, civil unrest, epidemics, measures relating to monetary policy, trade or other sovereign measures (e.g. withdrawal of landing rights, border closures etc.), natural disasters, accidents, destruction of accommodation, strikes, lock-outs, operational disruptions or similar events, irrespective of whether they occur at GoLive Marketing GmbH or its service providers, shall entitle either party to withdraw from the contract.
4.2 In the event of withdrawal from the contract, GoLive Marketing GmbH shall receive the agreed remuneration for services it has already provided. In respect of services that have not yet been provided, 40% of the fee agreed for them shall be agreed as saved expenses. The cancellation regulations of third-party providers shall apply to their services.
4.3 Withdrawal from the contract shall be declared in writing without delay after occurrence of the reason for withdrawal. Claims for damages due to delayed or non-fulfilled delivery or performance shall be excluded unless GoLive Marketing GmbH itself or its executives are guilty of intent or gross negligence. GoLive Marketing GmbH shall not be liable for gross culpability on the part of its vicarious agents and assistants. This exclusion shall not affect the personal liability of the vicarious agents and assistants for their own gross culpability.
5.1 After the order has been placed by the customer, GoLive Marketing GmbH shall draw up a project-specific payment schedule which shall automatically come into force unless the customer objects in writing within 5 working days. If no payment schedule is drawn up, the following payment terms shall be deemed as agreed:
– 30% of the order value after commissioning of the project, with a minimum sum of €5,000.00
– 50% of the order value up to 4 weeks before the start of the event/trip
– 10% of the order value up to 2 weeks before the start of the event/trip
– the remainder after the event and invoicing.
5.2 Deposit payments made to third parties to secure services (airline, hotel, local agents etc.) shall be invoiced separately by GoLive Marketing GmbH.
5.3 All exchange rate risks fall within the scope of responsibility and risk of the customer.
5.4 Personnel costs in general as well as for special services and additional orders during the event shall be charged at the following rates plus the applicable VAT:
– Managing Executive hourly rate € 185,00
– Senior Consultant hourly rate € 145,00
– Project Manager hourly rate € 125,00
– Junior Consultant hourly rate € 98,00
– Project Assistant hourly rate € 85,00
– Back Office hourly rate € 65,00
Third-party costs shall be charged in full plus VAT.
5.5 All invoices shall be paid net, i.e. without discount, and are due on receipt.
5.6 5.6 If the customer is an entrepreneur within the meaning of the Austrian Commercial Code (UGB), it shall only be entitled to offsetting, retention or reduction of the purchase price – even where notices of defects or counterclaims are asserted – if these counterclaims are legally established or undisputed. The customer agrees to the offsetting of its claims and liabilities.
5.7 5.7 All incurred AKM and GEMA fees or fees from similar copyright collecting societies shall be borne by the customer. Any subsequent charges may be asserted by GoLive Marketing GmbH as claims, even if the project has already been invoiced.
5.8 5.8 In the case of final invoices, GoLive Marketing GmbH shall be released from the obligation of account documentation of external costs if the costs (budget items) are identical to or less than the order budget. GoLive Marketing GmbH shall charge an agency handling fee of 15% plus statutory VAT on all cash expenses incurred locally or other payments of costs (room extras/cash invoices etc.).
6. Delivery, performance and acceptance
6.1 Compliance with agreed deadlines and dates shall be subject to the customer having fulfilled its contractual obligations, in particular having provided all necessary documents, permits and participant names as well as the agreed deposit payments and other payments in good time and in accordance with the contract.
6.2 Amendments to and deviations of individual services from the contractual agreements shall only be permissible if they become necessary after conclusion of the contract, are not initiated by GoLive Marketing GmbH in breach of good faith and do not otherwise impair the overall character of the event.
6.3 GoLive Marketing GmbH shall not be liable for delayed or non-delivery of goods and services by service providers commissioned by GoLive Marketing GmbH. GoLive Marketing GmbH does, however, undertake to assign any claims for compensation against service providers to the customer.
6.4 In the case of custom-made products and printed materials, excess or short deliveries of up to 10% as well as minor colour deviations and changes shall be permissible.
6.5 In the case of trips or events, any complaints must be made immediately upon their occurrence to GoLive Marketing GmbH or its responsible local project manager so that remedial action can be taken as soon as possible. If this action is not possible or has failed, this must be declared in writing to GoLive Marketing GmbH at the latest 3 working days after the end of the trip or event, restating the complaint.
6.6. GoLive Marketing GmbH shall not be held responsible for delays in delivery and performance due to force majeure or events which make delivery or performance significantly more difficult or impossible for GoLive Marketing GmbH – this also includes subsequent difficulties in procuring materials, operational disruptions, strikes, lock-outs, shortages of personnel, shortages of means of transport, official directives etc. even if they occur with suppliers or service providers of GoLive Marketing GmbH or their sub-suppliers or sub-providers – even where these affect binding agreed deadlines and dates. Such circumstances shall entitle GoLive Marketing GmbH to postpone the delivery or service for the duration of the hindrance plus a reasonable grace period or to withdraw from the contract in whole or in part on account of the portion of the contract not yet fulfilled. The customer may withdraw from the portion of the contract that has not been fulfilled if it cannot reasonably be expected to wait for a longer period of time.
6.7. If GoLive Marketing GmbH is unable to provide its services to the customer for reasons for which the customer is responsible, the risk shall pass to the customer on the date of receipt of the notice of completion. The performance of GoLive Marketing GmbH shall then be deemed to have been fulfilled.
7. Complaints about delivered goods
7.1 The customer shall inspect goods received for completeness and freedom from defects immediately on arrival and notify GoLive Marketing GmbH of any complaints in writing within one week.
7.2 In the case of justified complaints, GoLive Marketing GmbH shall, at its discretion, either replace or repair the goods free of charge. However, the replacement service shall apply only to the defective parts.
7.3 The customer shall grant GoLive Marketing GmbH the time and opportunity reasonably required to remedy the defect, in particular to make the defective object or samples of it available; otherwise the warranty shall lapse.
7.4 In the event of absence of guaranteed characteristics, liability shall be limited to warranty and rectification.
8.1 General limitations of liability:
GoLive Marketing GmbH shall only be liable for damages suffered by the customer if it is guilty of intent or gross negligence. This shall apply to all claims for damages, irrespective of the legal basis on which they are based, in particular from impossibility of performance, default, positive breach of contract or unlawful action.
Where GoLive Marketing GmbH is liable according to the provisions above, the obligation to pay damages shall only exist up to the amount of the concept planning or agency fee.
The limitations of liability agreed in this section shall apply to the same extent to the vicarious agents and assistants of GoLive Marketing GmbH. The limitations of liability shall not apply where GoLive Marketing GmbH itself or its executive employees are guilty of intent or gross negligence. GoLive Marketing GmbH shall not be liable for gross negligence on the part of its vicarious agents and assistants; this shall not affect their personal liability for their own gross negligence.
8.2 Limitation of liability of the tour operator:
8.2.1 The liability of GoLive Marketing GmbH is limited to the travel price if the damage suffered by the traveller is caused by negligence and/or if GoLive Marketing GmbH is responsible for damage suffered by the traveller solely due to the fault of a service provider.
8.2.2 If statutory provisions apply to a travel service to be provided by a service provider according to which a claim for damages can only be asserted under certain conditions or restrictions, GoLive Marketing GmbH may invoke these provisions vis-à-vis the traveller.
8.2.3 Where GoLive Marketing GmbH acts as contracting air carrier, GoLive Marketing GmbH shall be liable in this respect exclusively in accordance with the provisions of relevant international agreements, in particular the Warsaw and Guadalajara Conventions, in addition to the actual carrier (airline). These agreements provide for limitations of liability.
8.2.4 Where GoLive Marketing GmbH expressly acts as an intermediary on behalf of a third party, GoLive Marketing GmbH shall only be liable for the proper arrangement of the service and not for the provision of the service itself.
8.2.5 GoLive Marketing GmbH shall not be liable for service disruptions or deficiencies where these occur with services that are expressly identified as third-party services in the description of the travel itinerary. This applies in particular to additional programmes arranged locally at short notice.
8.2.6 Claims of the customer relating to non-contractual performance, with the exception of those relating to bodily injury or death, shall be subject to a limitation period of 6 months. The limitation period begins with the contractually agreed end of the trip or event.
9. Retention of title
9.1 GoLive Marketing GmbH shall retain title to all goods supplied until all claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply where individual claims or all claims of GoLive Marketing GmbH have been included in an ongoing invoice and the balance has been determined and recognised. Goods may only be sold in the ordinary course of business; they may not be pledged or assigned as security. GoLive Marketing GmbH shall be notified immediately of any seizure by other creditors.
9.2 GoLive Marketing GmbH undertakes to release the securities to which it is entitled if their value exceeds by more than 20% the claims to be secured, provided these have not yet been settled.
10. Safekeeping of customer property
10.1 The safekeeping of campaign materials and other documents shall only take place subject to prior agreement and, depending on individual circumstances, in return for separate payment.
10.2 The customer itself is responsible for providing adequate insurance cover for these promotional materials and documents.
11. Own advertising
GoLive Marketing GmbH shall be entitled to use copies or examples of the events, goods or other services supplied by it for its own advertising purposes. GoLive Marketing GmbH may refer to its company in an appropriate manner on contractual products without the customer’s consent. The customer may refuse such consent in writing.
12.1 Copyright and right of reproduction relating to sketches, drafts, originals, models, texts, concepts, travel and event programmes and the like produced by GoLive Marketing GmbH, in any process and for any purpose, shall remain with GoLive Marketing GmbH subject to express written authorisation. The service providers suggested by GoLive Marketing GmbH (suppliers, artists, presenters etc.) shall be understood as an integral part of the concept planning.
12.2 Where products are manufactured on the basis of data, drawings, templates, samples and the like provided by the customer, the customer shall be solely responsible for checking that no third-party property rights are thereby infringed. The customer undertakes to indemnify GoLive Marketing GmbH against all possible claims for compensation asserted on the basis of infringement of third-party property rights.
13. Competition clause
13.1 During any ongoing contractual relationship or initiation thereof and for a period of 18 months after termination of a contract between GoLive Marketing GmbH and the customer, the customer shall be prohibited from employing (directly or indirectly) employees, freelancers, subcontractors, service providers, suppliers etc. of GoLive Marketing GmbH in the area of business of GoLive Marketing GmbH, from commissioning them, having them commissioned or otherwise collaborating with them unless such collaboration can be proven to have existed prior to the commencement of the contractual relationship between GoLive Marketing GmbH and the customer.
14. Transfer of rights, applicable law and partial invalidity
14.1 The customer may only transfer its contractual rights to third parties with the written consent of GoLive Marketing GmbH.
14.2 The legal relationship between the customer and GoLive Marketing GmbH shall be governed exclusively by Austrian law.
14.3 Should any provision in these Terms and Conditions or any provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
15. Place of performance and place of jurisdiction
The place of performance and exclusive place of jurisdiction for deliveries, services and payments as well as for all disputes arising between the parties, including claims arising from cheques and bills of exchange, shall be the registered office of GoLive Marketing GmbH.
16. Data privacy
Both contracting parties undertake to comply in particular with the provisions of the GDPR (EU/2016/679) and the Austrian Data Protection Act 2018 (Federal Law Gazette I No. 120/2017) and to transmit these to their employees and partners acting within the framework of this agreement and to take all necessary data security measures.