Terms and conditions

the company Lobster Development GmbH

(hereinafter referred to as "provider")

valid from January 10th, 2020

1. General

In addition to the activities of an advertising agency, the provider's corporate purpose also includes data processing and computer services as well as information technology. In this sense, the provider is among others. Work as a website designer, as a source of ideas for planning marketing strategies, as a designer of various advertising media, as a guide in the selection of media or in PR matters for the creation of tailor-made communication concepts.

2. Validity

The General Terms and Conditions apply to all agreements between the provider and the customer (provider and customer hereinafter referred to as the "parties") and regulate the provision and implementation of all current and future services and deliveries between them.
The provider delivers or performs exclusively under these terms and conditions; any existing delivery, purchasing or contractual conditions of the customer do not apply. A special objection by the provider against such delivery, purchasing or contractual conditions is not required.

3. Conclusion of contract

The deliveries and services to be performed are specified in a separate contract (“contract”). This contract must be in writing to be legally effective.

Written offers from the provider remain valid for 14 days and must be accepted in writing by the customer. An electronic contract by email is also sufficient for the agreed written form requirement.

4. Scope of services and service provision or acceptance

The detailed definition of the requirement definition including the creation of a specification sheet is carried out either by the provider or by the customer. If the preparation is done by the provider, the customer must provide all the necessary documents and information. The customer must check the definition of requirements or the specification for correctness and completeness and confirm this in writing. Later changes must be confirmed in writing and will be charged separately.
The customer must accept the software at the latest 4 weeks after delivery / service provision. The acceptance must be based on the specifications approved by the customer and must be confirmed in writing by the customer in an acceptance report. Minor and insignificant defects do not entitle the customer to refuse acceptance.
If the customer does not carry out an acceptance in point 4.2, or if the software is actually used, it is deemed to have been accepted at the end of this period or with commissioning.
The provider is responsible for the selection of the employees providing the contractual services; the provider expressly reserves the right to consult third parties for this.

5. Fee and terms of payment

Unless otherwise agreed in the order / contract, the prices stated in the offer / contract or in the order form [1] apply. The prices are based on the costs at the time of the first price offer. If the wage and material costs or taxes to be paid by the provider increase by the time of delivery, he is entitled to adjust the prices accordingly and to charge the customer from the beginning of the month following the increase.
For services rendered as an advertising agency and compensation for usage rights, the provider receives a fee of 15% of the advertising budget processed through him.
The provider is entitled to a reasonable fee for participating in presentations, which at least covers all of its personnel and material expenses for the presentation as well as the costs of all external services. If the provider does not receive an order after the presentation, all services of the provider, in particular the presentation documents and their content, remain his property. The customer is not entitled to continue to use them - in whatever form; the documents are rather to be returned to the provider immediately.
If the ideas and concepts introduced in the course of a presentation for the solution of communication tasks are not used in the advertising material designed by the provider, the provider is entitled to use the presented ideas and concepts elsewhere for third parties.
The forwarding of presentation documents to third parties and their publication, duplication, distribution or other distribution is not permitted without the express consent of the provider. [2]
The software is provided against a one-off payment or against regular usage fees.
If the usage fees are to be calculated in stages, these are based on the usage classes. The usage class depends on the number of VDU workstations installed, which are specified in the respective contract.
The customer must immediately notify the provider of any change to a higher usage class. At the time of the change, the usage fee of the higher usage class is due.
Upon conclusion of the contract, a down payment of 40% of the agreed fee must be paid by the customer. Subsequently, the provider is entitled, depending on the progress of the project, to prepare a monthly statement and to submit partial invoices, which are due without deduction and free of charges within 14 days of the invoice date.
For standard software and hardware, the list prices valid on the day of delivery apply; other services such as programming, schooling, advice, etc. will be charged according to the actual time expenditure at the hourly fee valid on the day of the services.
Costs for data carriers, travel, daily and accommodation allowances will be invoiced separately according to the actual effort. Driving times are considered working hours.
If, at the request of the customer or due to special circumstances that make this necessary, the service is performed outside normal working hours, the additional costs caused will be charged to the customer separately.
All prices quoted are exclusive of VAT. All invoices are payable without deductions and free of charges within 14 days of the invoice date.
If the customer is in arrears with his payments, the provider is entitled to interest on arrears in the amount of 8% p.a. over the respective basic interest rate and the costs of a reminder letter from a lawyer or collection fees incurred.
The customer must bear all fees, taxes, levies or other costs or expenses arising from the establishment of the contract.

6. Retention of title

The contractual deliveries / services remain the property of the provider until full payment has been received; this also applies if the software (or other services) have been transferred to data carriers or have been transmitted online. As far as only usage rights to software have been granted, this regulation applies accordingly.
The customer is entitled to adapt the services / goods delivered under retention of title to his needs as long as he is not in arrears with payment and does not interfere with the intellectual or commercial property rights of the provider or third parties.
Pledges and transfers by way of security in the event of retention of title are not permitted.
In the event of executive access by third parties, the customer must point out the property of the provider and is obliged to inform the provider thereof immediately and to indemnify and hold him harmless with regard to all resulting claims and costs.
In the event of a delay in payment, the provider is entitled to reclaim the goods delivered under retention of title at the customer's expense or, if necessary, to demand the assignment of a customer's surrender claim against a third party.

7. Copyright and ancillary copyright

The provider remains the owner of all copyrights and ancillary rights to the software / database including the associated documents. These copyrighted services include all of the provider's services, especially those relating to presentations such as ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides. Individual parts from the aforementioned services, like the individual workpieces and design originals, remain the property of the provider and can be requested back by the provider at any time - especially when the contract is terminated. This also applies if the customer changes, processes or combines the software with other software with the consent of the provider.
After payment of the agreed fee, the customer receives the non-exclusive and non-transferable right to use the services / services provided for the agreed purpose and in the agreed scope of use. If the subject of the contract is specified software, the customer has the right to use it exclusively at the agreed location and to the extent of the number of licenses acquired for simultaneous use on several workplaces.
Existing markings, copyright notices or proprietary notices of the provider may not be removed or changed by the customer. If copies are permitted, these must also be created with the above-mentioned markings.
The provider is entitled to make necessary changes to the software based on third party rights claims at the customer's own expense. The customer undertakes to inform the provider of any claim made against him due to infringement of copyrights or industrial property rights.
The software is only intended for your own use.
The source code produced during the development of the software remains the property of the provider. This source code also represents a copyrighted work in the sense of copyright. The customer has no right to use or exploit the source code in any way. The source code is used only for the maintenance and further development of the contractual software, which is the sole responsibility of the provider.
The customer is not entitled to pass on the source code to third parties, for whatever reason.

8. Warranty

For material defects existing at the time of acceptance by the customer, the provider guarantees only in accordance with this provision, point 8
The provider only guarantees the properties of the item / service as described by him. The provider makes no guarantee for properties not expressly promised to the customer in writing. The provider makes no guarantee for certain expectations of the customer regarding the goods / service provided, which are not confirmed in writing by the provider as a property of the object / service.
If the item / service provided by the provider contains items / services provided by third parties, the provider will, if they are defective, use the third party to assert a warranty and pass on any advantages thereof to the customer, insofar as this is possible.
Upon acceptance, the customer must immediately check the goods and services provided by the provider to ensure that they are free from defects. A defect discovered by the customer during this inspection must be notified to the provider in writing within two (2) days (receipt by the provider) ("notification of objection"). The customer must state the order number and the object of the order in the notification of defects, the object and / or service which, in his opinion, was defective upon acceptance and a detailed description of the defect.
If the customer does not fulfill his obligation to give notice of defects in accordance with this provision and / or if he does not submit a notification of defects in good time, the provider is released from his warranty obligation towards the customer.
Defects that cannot be discovered by the customer when inspecting the item / service despite appropriate examinations, test runs, etc. immediately after acceptance ("hidden defect") must be reported by the customer within two (2) days after discovery by submitting a notification to the customer Announce provider. In this notification, the customer must also explain and make credible that and why it is a hidden defect that he could not identify in the course of the inspection of the item / service immediately following the acceptance.
If the provider detects a defect in the item / service based on a timely notification, the provider guarantees as follows: The provider is entitled to improve the defective item / service either within a reasonable period of 4 weeks or by to exchange a defect-free item / service (e.g. by installing new software). The provider will take into account the needs of the customer as much as possible, but the customer has no right to determine the provider for improvement or exchange.
If the improvement of the item / service or an exchange of the same is not possible within a reasonable period of time, is impractical or involves a disproportionately high effort for and in the opinion of the provider or if the defect cannot be remedied, the provider is entitled to either reduce the price accordingly or withdraw from the contract under reverse processing.
If one part of the service is defective, the provider is entitled to make a partial change only with regard to the defective item / service, unless the item / service provided by the provider becomes unusable for the customer due to the defectiveness of the item / service.
The customer has to support the provider with improvements and / or an exchange to the best of his ability and, in particular, without being restricted to this, to grant the provider access to the defective goods / services during normal business hours and, as far as his own participation due to the circumstances, it is necessary to ensure this accordingly.
The warranty period is 12 months from acceptance of the delivery / service and begins on the day of acceptance by the customer. The warranty period for hidden defects also ends in accordance with this provision. Warranty claims by the customer are therefore excluded after the warranty period has expired.
The warranty period does not extend for items / services that have already been exchanged or improved by the provider as part of the warranty or as a goodwill gesture; the deadline is also calculated here based on the day of acceptance of the item / service handed over by the provider.
If defects cannot be determined during an inspection, the customer bears the costs of this inspection. This also applies if the error is due to inadequate operation or to malfunctions for which the provider is not responsible.
In the event of a change in products / software or parts of the product / software by the customer or third parties, no liability is assumed by the provider. The provider assumes no liability for errors, malfunctions or damage resulting from improper operation, the use of unsuitable equipment or unusual and / or unusual operating conditions.
This provision regulates the guarantee of the provider towards the customer. The customer is therefore only entitled to assert a guarantee against the provider within the scope and in accordance with this provision. Further claims or rights of the customer are excluded.

9. Liability

Irrespective of the legal reason, the liability of the provider is limited to a total of 50% of the order amount ("limitation of liability"). The customer is not entitled to claim further damages.
Irrespective of the legal reason, the provider is only liable for intent and gross negligence. The liability of the provider is excluded for slight negligence.
The provider is liable for personal injury within the framework of the statutory provisions. The provider is not liable for indirect damage, consequential damage, consequential damage caused by a defect, loss of data, further damage to eaters, lost profit, lost business prospects, pure financial loss, savings not achieved, loss of interest and damage from claims by third parties. In particular, any claims in the event of the customer's server failing are excluded.
In the event of non-compliance with conditions and regulations for assembly, commissioning and / or use (as e.g. contained in the operating instructions) of the item / service handed over by the provider by the customer or failure to observe any official approval conditions, the provider is not liable to the customer.
The customer has to prevent any damage occurring with the greatest possible effort by taking appropriate measures or, if prevention is not possible, to reduce it. If damage occurs, the customer must immediately inform the provider in writing of the type and amount of the damage and the measures he has taken ("duty to provide information").
If the customer does not immediately comply with his information obligation, the liability of the provider is [excluded] / [the liability of the provider is reduced to 10% of the amount stated in the first paragraph of this point (limitation of liability)].

10. Free drawing

The provider assumes no responsibility for networks or network and other telecommunication services that are not operated, created or managed by him up to an interface defined in the order / contract, which are physically or logically upstream of the services in question
The provider is not obliged to check data of the customer or third parties that it transfers to him for processing, storage or transport, for their content or logical content. If the provider suffers damage or additional work as a result of the fact that the data provided to him by the customer contains illegal content or is not in a condition that makes them suitable for the provision of the commissioned service, the customer must bear these costs.
If the provider makes client software available, its functioning is only guaranteed under the contractually specified framework conditions, but in any case only under the condition of a constant operating environment and identity of the network services upstream of the technical environment at the time the contract was concluded.
The provider is not liable for damage resulting from the fact that third parties whose data he has taken over for processing, storage or forwarding or other persons with whom he has no contractual relationship act improperly, provided that he misuses this within the scope of Technology and industry standards could not prevent.

11. Customer obligations

The customer must treat all contractual information, documents related to the product / software and methods ("confidential information") confidentially. This obligation already exists during the contract negotiations and extends beyond the duration of the contract between the provider and the customer. The customer will also commit to this confidentiality obligation to all of its employees.
The customer is fully liable for breach of contractual obligations, this also applies to the use of copies made contrary to the contract or their multiple use or transfer to third parties.
The customer is involved in the provision of services on the part of the provider in good time by creating a detailed requirement profile and in particular by providing test data and other information and aids necessary for the creation of the software. The provider will notify the customer of these duties to cooperate in good time.
The parties undertake not to poach employees from one another for a period of 6 months after termination of the contract or to have them poached by third parties. A contractual penalty of EUR 50,000 is deemed to have been agreed for the violation of this provision. The judicial right of moderation is excluded.

12. Contract duration and termination

The term of the contract is specified in the respective order or contract itself. The provider is corrected to withdraw from the contract in the event of late payment by the customer after the unsuccessful grace period of 2 weeks has elapsed.
The provider is entitled to immediately withdraw from the contract without setting a grace period
If an application to open insolvency proceedings has been filed with the court regarding the assets of the customer, insolvency proceedings (or reorganization proceedings) have already been opened or the opening has not been opened or refused due to insufficient assets;
If there are concerns about the solvency of the customer and the latter does not make a reasonable advance payment upon request by the provider, nor does he provide suitable security before delivery or service provision;
If there are changes in the ownership structure of the customer, or the credit rating deteriorates due to changes in the area of the shareholders or the asset structure of the customer; after all
If the customer misuses the authorization granted to him to use the provider's facilities to commit unlawful acts or damage third parties.
For the above reasons, the withdrawal can also be declared with regard to a part of the delivery or service that is still open.
Without prejudice to the claims for damages by the provider, in the event of withdrawal, services already rendered or partial services must be invoiced and paid for in accordance with the contract. This also applies if the deliveries or services have not yet been taken over by the customer, as well as for preparatory actions performed by the provider. Instead, the provider also has the right to request the provision of goods / services already delivered.
If the customer withdraws from the contract for reasons for which the provider is not responsible, a contractual penalty in the amount of EUR 10,000 applies as agreed - unless otherwise agreed in the contract. The provider reserves the right to claim any further damage. The judicial right of moderation is excluded.
In the event of justified extraordinary termination by the provider, he is entitled to reimbursement of those expenses that have arisen with regard to the establishment and fulfillment of the contract / order (e.g. through the purchase of equipment), and that incurred during the term of the Contractual fees paid by the customer have not yet been paid to this extent.

13. Choice of law

For all disputes between the parties, Austrian law is agreed to the exclusion of the reference standards and the UN sales law.

14. Place of jurisdiction

Subject to mandatory provisions of the Consumer Protection Act, Graz is agreed as the place of jurisdiction for all disputes.

15. Written form

All notices and statements relating to the contractual relationship between the parties are only valid if they are made in writing. Verbal side agreements between the parties were not made. Changes or additions to all agreements between the parties must also be made in writing. This also applies to a departure from this written requirement.

All written notices or declarations to the provider must be sent to:

Herrengasse 9 8010 Graz

office@lobster.ly

16. Severability clause

Ineffective, invalid or unenforceable provisions of the contract and these terms and conditions between the parties do not affect the effectiveness, validity or enforceability of the remaining provisions. Ineffective, invalid or unenforceable provisions are to be replaced by those that come as close as possible to the purpose of this contract and these terms and conditions.