General Conditions of Contract
Design Austria (GCC DA)
1.
Applicability
These General Conditions of Contract (GCC) apply to all design
contracts (creative services) between Designer, DA, and
Designer’s Client. They may not be used for the sale of originals
or for commercial services.
2.
Basis for the Collaboration
2.1. The basis of every contract is the framework (briefing)
provided by Client, whose requirements are to be fulfilled by
Designer. Within the framework of the briefing, freedom of
design is allowed in carrying out the commission.
2.2. Designer is to create the work autonomously and in
person, but nevertheless has the right to enlist the services of
competent associates or partners.
2.3. Any possible consultancy on the part of Designer must
remain strictly within the area of design. The liability for an
»expert opinion« shall remain confined to this area, in accordance
with the ABGB (Allgemeines bürgerliches Gesetzbuch) [the Civil
Code of Austria] (Article 1299).
2.4. Client shall ensure that Designer receives in good time
and in full all documents and details, as well as instructions, that
are necessary to optimally fulfil the commission.
3.
Proprietary Right and Right of Use
3.1. Insofar as nothing else has been agreed upon between
Client and Designer, Designer grants Client exclusive use of the
work (exclusive right of use), with the exception of any possible
programming services
3.2. Upon payment of the total fee and additional expenses,
Client acquires the agreed-upon right of use to the works created
in fulfilment of the commission, in the form in which they are
delivered and for the agreed purpose and scope of use. If no
agreement has been made as to the purpose and scope of use,
the minimum scope necessary to the fulfilment of the commission
shall apply. Every other or further future use can only be provided
with the concurrence of Designer and against compensation.
3.3. Any modification, revision, or imitation of the works
conveyed for use is inadmissible, so long as the right to alteration
has not been previously granted in writing and against
compensation.
3.4. The rights granted Client (or in the case of an agent,
the agent’s customer) may only be conferred on a third party –
whether gratuitously or for a consideration – with Designer’s
express consent.
3.5. Client acquires no ownership of the designs,
elaborations, or computer data. In the case of a singular
succession, all rights and obligations devolve upon the legal
successor; however, only within the scope agreed upon by
Designer, DA, and Client. Any possible expansion of the uses
by the legal successor requires under all circumstances the
agreement of Designer, DA.
3.6. A licence for unrestricted right of use is required should
Client wish to continue to use in unaltered form the concepts,
ideas, or works that were developed or designed after either
completion of, withdrawal from, or termination of a contract or
service agreement. If said concepts, ideas, or works are to be
altered, brought up to date, or utilised as the basis for further
development by Client or a third party, the granting of the right
to alteration by a third party is additionally required. A further
agreement is also obligatory should Client wish to receive and
keep the computer data.
4.
Compensation for Presentations
4.1. All of Designer’s services are to be compensated, with
the exception of the preparation of service, time, and cost proposals
necessary to making the bid.
4.2. The invitation issued by Client to prepare a presentation
with preliminary sketches shall be regarded as a commission
to provide a defined specification of services. The amount of the
compensation for the presentation is freely negotiable and
comprises half of the usual fee for a design, as deemed
appropriate under Articles 1004 and 1152 of the ABGB, provided
nothing else has been agreed upon. Once the presentation has
been made, the presentation contract is considered as having
been awarded, accepted, and fulfilled.
4.3. Upon conclusion of the presentation, should Client or
the initiator of a presentation competition not award Designer
or another presentation competitor contract at all, or only one
that has been considerably reduced, Designer is entitled to
full compensation for the design, instead of the (reduced)
presentation fee.
4.4. The presentation fee includes no granting of rights of use.
5.
Service, Services Provided by Third Parties,
and Production Monitoring
5.1. A suitable payment in accordance with Articles 1004 and
1152 of the ABGB will be provided as agreed for rendering the
desired services, including the submission of the production data.
The transfer of development data is only considered part of the
service when this has been set forth in writing and an additional
fee has been agreed upon.
5.2. Designer is authorised to either personally perform
necessary or negotiated support services in connection with the
contract against customary local compensation therefor or to
engage a third party on behalf and for the account of Client.
5.3. The coordination and monitoring of the reproduction/
production (such as colour or print monitoring) may be awarded
by Client to external production experts or to Designer. Such
services require a separate contract and shall be provided against
payment.
6.
Return and Storage
6.1. Client shall receive all documents, intermediate results,
designs, conception descriptions, and elaborations in trust. Until
Client has acquired the rights of use, as well as in the case of
denial (waiver of use), Client may not make copies of them, store
them in computer systems, or make them available to third parties
either for viewing or further development, unless the third
party is an opinion research institute that has been engaged for
decision-taking purposes.
6.2. As soon as the original sketches and computer data are
no longer necessary for the agreed application, they shall either
be sent back or handed over to Designer in an undamaged state
for the risk and account of Client.
7.
Liability
7.1. Designer shall not be liable for slight negligence. In the
case of gross negligence, Designer must assume liabilities up to
the amount of his or her fee (excluding additional expenses and
value added tax).
7.2. Designer must be notified of any deficiencies, with a
request for their rectification, within a reasonable period of time
immediately after the receipt of services. Any costs arising from
the engagement of a third party to remedy a deficiency despite
Designer’s willingness to carry this out personally must be borne
by Client. All claims to rectification lapse after a period of six
months.
7.3. Designer bears no responsibility for the legal
admissibility – in particular with regard to competition, trademark,
and administrative legislation – of the designs and elaborations.
Designer is also not liable for the correctness of texts and images
when the works have been approved by Client or when the
documents have at least been offered to Client for inspection.
7.4. Insofar as Designer enlists the necessary or agreed-upon
services of others on behalf and for the account of Client, the
respective contractors shall not be considered as subcontractors
of Designer, DA.
7.5. The documents provided by Client (photos, texts,
models, patterns, etc.) shall be used by Designer under the
presumption that Client is entitled to their use and that in
developing or using them, no rights of any third party are being
infringed upon. For every kind of unlawful use, Client is liable
to Designer under Article 86 of the Austrian Copyright Act
[Urheberrechtsgesetz (UrhG)] in the amount of twice the
appropriate fee for this use, inasmuch as such use has at least
been enabled through Client’s negligence or tolerance of it.
8.
Identification and Reference Copy
8.1. Under Article 20 of the Austrian Copyright Act,
Designer is entitled to affix his or her name, pseudonym,
company name, or logo to each of the works/products Designer
has created, as well as to the advertising materials for or
publications about them. The form and duration of the labelling
may be arranged with Client.
8.2. Under Article 26 of the Austrian Copyright Act,
Designer retains the right to employ for promotional purposes
printed images of the works/products he or she has designed,
or to make these images available in the World Wide Web for
the same purposes.
8.3. In the case of three-dimensional objects, Designer is
entitled to the gratuitous use of visual images of the objects that
were produced with the aid of his or her design solution, and
also should receive a reference copy, so long as the latter does
not involve disproportionately high costs. In the case of printed
works, Designer is entitled to a minimum of five copies of the
works he or she has designed.
9.
Withdrawal and Cancellation
9.1. After submission of the first presentation, Client and
Designer are each entitled to withdraw from the contract without
stating reasons. However, the presentation fee, according to
Point 4.2 of the GCC DA, shall nevertheless be paid by Client.
9.2. Should Client cancel the contract during the design or
elaboration phase or within a valid framework agreement for
reasons for which Designer is not responsible, or if Client reduces
the scope of the contract, Client is obliged to remunerate the
design fee plus the support services and expenses that have
accrued to date.
9.3. Irrespective thereof, Designer is entitled to
compensation for provided but not used work capacity and to
charge Client for any possible damage suffered therefrom.
Compensation for use does not apply, and Designer retains all
rights.
10.
Final Provisions
10.1. This GCC DA, as well as all framework agreements,
cannot be modified or amended except in a written instrument.
10.2. Exclusively Austrian law shall apply. The site of
fulfilment and court of jurisdiction is Designer’s place of business.