I. Scope; General provisions
The following Terms and Conditions (T&Cs) apply to all business transactions concluded between the commissioning party, purchaser or customer (hereinafter referred to as the ‘Customer’) and Wine&Partners, Muhr & Watzlawick OG, FN 219995Y, 1190 Vienna, Peter-Jordan-Straße 6/3 (hereinafter referred to as ‘Wine+Partners’). The version of the T&Cs applicable at the time the contract was concluded with the customer shall govern the respective transaction.
Wine+Partners provides its services solely on the basis of the present T&Cs. These T&Cs also apply to all future business transactions, even if they are not referred to in each individual case.
Ancillary agreements, provisos, amendments or supplements to these T&Cs require the written form; the same applies to the revocation of the written form requirement.
Ancillary agreements, provisos, amendments or supplements to these T&Cs require the written form; the same applies to the revocation of the written form requirement.
Deviating, conflicting or supplementary T&Cs (e.g. from the customer) do not constitute an integral part of this agreement, provided Wine+Partners has not expressly agreed to their validity.
In the event that individual provisions of these T&Cs are found to be void or unenforceable, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The void or unenforceable provision shall be replaced with a legally effective provision that conveys the intent and purpose of the original void or unenforceable provision.
II. Quotes; Cost estimates; Contract conclusion
Contracts are concluded on the basis of the respective quote provided by Wine+Partners or the order from the customer, which specifies the scope of service and applicable fees.
Quotes from Wine+Partners are subject to change, non-binding and valid for 14 days after issuance. Quotes are provided in Euro plus statutory VAT based on the costs of labour and materials at the time the quote was issued. If the costs of labour and materials change after issuance of the quote, Wine+Partners reserves the right to adjust the prices accordingly provided the customer is not a consumer as per the Consumer Protection Act (KSchG).
Cost estimates provided by Wine+Partners are non-binding. If the actual costs are expected to exceed the originally estimated costs by over 10 %, Wine+Partners shall inform the customer of the higher costs. The cost overrun is consequently deemed accepted by the customer if the customer fails to object to the higher costs and suggest lower-cost alternatives in writing within three days upon receipt of the notification from Wine+Partners.
If the customer places an order, this order shall be binding for two weeks upon its receipt by Wine+Partners. The contract shall be concluded once the order has been accepted by Wine+Partners. Acceptance must be provided in writing (e.g. with an order confirmation), unless Wine+Partners indicates acceptance of the order beyond any doubt (e.g. by commencing work on the order).
III. Scope of services; Order processing; The customer’s duty to comply
The scope of the services to be rendered is specified in the quote provided by Wine+Partners, the customer’s order or the service description and information in the contract. Any subsequent amendments to the service content require the written form.
The customer is required to provide Wine+Partners with all information and documents required for timely and proper performance of the order at its own costs upon placement of the order. The customer must inform Wine+Partners of all processes related to the performance of the order, even if it only first becomes aware of these circumstances during performance of the order. The customer shall bear the costs for any work that needs to be repeated or delayed by Wine+Partners due to incorrect, incomplete or subsequently amended information provided by the customer.
In addition, the customer must provide all documents required for performance of the order in a structured form on data carriers (e.g. CD, USB stick, hard disk, etc.) by email or using Cloud services. Wine+Partners reserves the right to charge the customer for any extra costs incurred due to data conversions deemed necessary according to the time required (at suitable hourly rates).
The customer must check all documents (photos, logos, etc.) provided for performance of the order for existing copyrights, labelling rights or other third-party rights and obtain all required permissions. Wine+Partners may not be held liable for any violations of this kind. If a claim is asserted against Wine+Partners on the basis of this kind of legal violation, the customer hereby indemnifies Wine+Partners from this claim; the customer must also compensate Wine+Partners for all losses incurred as a result of this third-party claim.
Wine+Partners is not required to comply with unlawful instructions from the customer. In the case of imminent risk, Wine+Partners is also entitled to take or refrain from an act not explicitly specified in the order placed or that contradicts an issued instruction if it appears to be urgently required in the interests of the order or the customer.
All services provided by Wine+Partners (in particular all preliminary designs, drawings, final artwork, proofs, blueprints and colour prints) must be checked by the customer and approved within 3 days. If the customer fails to approve the services in time, they shall be deemed approved.
The customer is also required to check all services provided by Wine+Partners for their admissibility under competition, trademark, copyright and administrative law prior to potential publication. Wine+Partners does not assume any liability in this regard. If a claim is asserted against Wine+Partners on the basis of this kind of legal violation, the customer hereby indemnifies Wine+Partners from this claim; the customer must also compensate Wine+Partners for all losses incurred as a result of this third-party claim.
IV. External services; Third-party commissions
Wine+Partners is at liberty to elect whether to perform the service itself, to appoint a third-party to render contractual services and/or to offer substitute services.
Vicarious agents are either commissioned in Wine+Partners’ name or in the customer’s name, but for the customer’s account in every case.
Wine+Partners does not assume any liability towards the customer for orders placed by Wine+Partners in the customer’s name and for the customer’s account.
Wine+Partners shall carefully select vicarious agents and ensure that they possess the required professional qualifications.
V. Social Media
In the case that orders pertain to social media, Wine+Partners shall endeavour to organise and render its services in accordance with the freely and publicly-accessible terms of use for the respective provider. If the terms of use are not freely and publicly-accessible, the customer shall be required to provide Wine+Partners with a copy thereof.
The customer shall not be entitled to assert any claims against Wine+Partners if services and products are removed, made illegible or otherwise rendered unusable by the respective provider. Wine+Partners does not assume any liability in this regard.
If a claim is asserted against Wine+Partners by providers due to a breach of the terms of use, the customer hereby indemnifies Wine+Partners from this kind of claim; the customer must also compensate Wine+Partners for all losses incurred as a result of this kind of claim.
VI. Deadlines and delivery dates
In the event that deadlines and delivery dates are referred to in quotes and cost estimates provided by Wine+Partners, they are to be regarded as non-binding estimates (approximations). Delivery and service deadlines shall first become binding upon conclusion of a separate written agreement between the customer and Wine+Partners.
Deadlines and delivery dates agreed as binding shall also be subject to complete and timely provision of information and documents in addition to approval of the concept by the customer. In the case of delays attributable to the customer, Wine+Partners shall no longer be bound by the agreed deadlines and delivery dates.
If deliveries are delayed on other grounds for which Wine+Partners is not responsible or could not prevent without unreasonable effort (e.g. force majeure), the agreed delivery period shall be extended accordingly. If this kind of delay persists for longer than 4 weeks, both contractual parties shall be entitled to cancel the contract with 14 days’ notice.
In the case that deadlines and delivery dates were agreed as binding and not adhered to for reasons attributable to Wine+Partners, the customer shall reserve the right to assert the claims to which it is legally entitled following the granting of a reasonable grace period of at least 14 days to Wine+Partners. This grace period shall commence upon receipt of a written warning by Wine+Partners.
If the grace period expires without delivery, the customer shall be entitled to cancel the contract. Wine+Partners shall only be required to provide compensation for damages resulting from the delay in the case of intent or blatant gross negligence on its part.
VII. Fees
Fees are stated net plus statutory VAT.
Subject to other written agreements, Wine+Partners is entitled to claim remuneration upon completion of the respective partial performance. Wine+Partners reserves the right to invoice the customer separately for each individual partial performance.
Furthermore, Wine+Partners is also entitled to demand advance payments or instalments to cover its costs.
All services provided by Wine+Partners that are not expressly compensated with the agreed fees must be paid separately.
In the case of copywriting, the agreed fee also covers a minor revision following completion of the first draft and initial acceptance according to the customer’s requirements. The customer is required to create a written list of corrections and send this list to Wine+Partners in this regard. If the customer’s correction demands exceed the permitted extent of the minor revision (minor amendments to the text and layout), Wine+Partners shall be entitled to refuse the additional services or invoice them separately according to the time required. The customer will receive a corresponding quote in this case.
If the customer requires written documentation and/or long-term archiving (e.g. documentation via programming code, CD manuals) that goes beyond the extent of conventional project management (e.g. minutes from meetings, scheduling, cost projections), this must be agreed and paid separately. Wine+Partners does not guarantee permanent (digital) archiving of content related to order processing.
Wine+Partners reserves the right to charge a lump-sum fee for office costs amounting to 10 % of the agreed fee. This lump-sun fee covers cash expenditure for the distribution of press releases, the use of the project management tool, postal and courier services, reasonable office expenditure (e.g. photocopies, small items, etc.), media monitoring in Austria, German and Switzerland, use of the clipping tool (Good News), small translations for the newsletter, press releases, small press releases or invitations in addition to travel expenses for an annual meeting at the customer’s offices. It does not include, for example, a high number of photocopies and printing, media monitoring (print/radio/TV) in countries outside the DACH region, non-standard courier services, translations for websites, factsheets etc. in addition to travel expenses for other meetings and special shuttle services for journalists. Routes travelled by car will be invoiced at the current kilometre allowance rate. Non-included expenditure does not constitute an exhaustive list.
In the case that additional cash expenditure not covered under the lump-sum fee for office costs is incurred, Wine+Partners shall invoice the customer separately for these costs.VIII. Zahlung
IX. Payment
Invoices from Wine+Partners are payable net without reduction as of the invoice date and due within 7 calendar days after receipt of the invoice. If the customer defaults in payment, it shall be liable to pay default interest amounting to 9.2 % above the basic interest rate. A default interest amount of 4 % p.a. shall be charged for consumers as per KSchG.
The customer must bear all costs and expenses associated with the collection of receivables, in particular collection expenses or other costs that arise in conjunction with due process, whereby the standard costs for two reminder letters and a reminder letter from a lawyer appointed to collect the receivables are deemed adequate. The assertion of other rights and claims remains unaffected by the above.
If the customer defaults in payment, Wine+Partners reserves the right to demand immediate payment of all performances and partial performances rendered as part of other contracts concluded with the customer. If payment in instalments is agreed, Wine+Partners shall be entitled to demand immediate payment of all outstanding amounts in the case on untimely payment of partial instalments or other receivables.
Furthermore, Wine+Partners may suspend other services prior to payment of all outstanding amounts.
The customer is not entitled to offset claims from Wine+Partners with its own claims, unless the customer’s claim is recognised in writing by Wine+Partners or legally established. The customer is not permitted to exercise a right of retention.
X. Copyrights; Labelling
All services provided by Wine+Partners, including those from demonstration (e.g. suggestions, ideas, drawings, preliminary drawings, scribbles, final artwork, concepts, negatives, slides), and parts thereof, remain the property of Wine+Partners along with the individual deliverables and original drafts and may be reclaimed at any time, in particular upon termination of the contractual relationship. The customer only obtains the right to use the deliverables for the agreed purposes to the agreed extent upon payment of the fee.
Wine+Partners also uses licensed stock material (photos, videos, music, etc.) in the website-design process or for other commissioned works. This material is solely subject to the licensing terms of the respective provider.
Complete payment of the fee invoiced by Wine+Partners is required to obtain usage and exploitation rights to Wine+Partners deliverables.
Any amendments or editing of deliverables provided by Wine+Partners, in particular the further development thereof by the customer or appointed third parties, are only permitted with express approval from Wine+Partners and – if the deliverables are copyright-protected – the creator.
Approval from Wine+Partners is required for any use of deliverables provided by Wine+Partners that goes beyond the originally agreed purpose and extent – regardless of whether these deliverables are copyright-protected. Wine+Partners (and the creator, if applicable) shall be entitled to claim reasonable separate payment for this usage.
If the customer has agreed a continuing obligation with Wine+Partners (e.g. social media management, ongoing media relations, etc.), upon termination of the contractual relationship (on any grounds), the customer must obtain approval from Wine+Partners for the continued use of Wine+Partners deliverables and advertising materials for which Wine+Partners prepared conceptual or design drafts, regardless of whether these deliverables are copyright-protected.
When the customer publishes deliverables, Wine+Partners must be listed as the creator free of charge.
Wine+Partners also reserves the right to feature its company i.e. name and logo or the creator on all advertising materials and for all advertising campaigns free of charge.
Furthermore, Wine+Partners is entitled to mention the existing or previous business relationship with the customer on its own advertising materials and website. This includes both the customer’s name and logo.
Data protection; Confidentiality
Wine+Partners processes personal data from its customers according to the General Data Protection Regulation (GDPR) for the following purposes: i. initiating contact with Wine+Partners, ii. data collection for initiating, concluding and fulfilling the contractual relationship, and iii. providing information relating to Wine+Partners. Customers are not required to disclose personal data to Wine+Partners. However, without the provision of this data, Wine+Partners will not be able to conclude contracts with customers. Customers shall be informed if they are legally required to provide data.
Data is solely processed with the customers’ consent (Art. 6, para. 1, lit. a GDPR) on the basis of Wine+Partners’ legitimate interest (Art.6, para. 1, lit. f GDPR) to fulfil the purpose of the respective order or contractual relationship with the customer on the basis of the requirement to comply with statutory obligations (Art. 6, para. 1, lit. c GDPR).
The categories of data processed by Wine+Partners include the customer’s company name, title, first name, surname, street, house number, postcode, town/city, phone number, fax number, email address, account details (Facebook and Instagram) and data related to payment methods (e.g. bank account details, credit cards).
If processing is necessary, the processed data may be transferred to Wine+Partners employees and third parties. Data will only be transferred to third parties where necessary for fulfilment of the respective contract, particularly to initiate contact between customers.
Personal data shall only be stored for the period required to fulfil the purposes stipulated under Section 10. In any case, personal data shall be stored (i) in the case of statutory retention periods, or (ii) potential legal claims that would require the personal data for assertion or defence and are not yet statute-barred.
Customers grant their consent to communication via analogue and/or electronic mail, particularly for advertising purposes. This consent may be revoked at any time.
The customers’ rights, in particular those granted under Art. 12 ff GDPR remain unaffected by the above.
Please contact the Wine+Partners Data Protection Officer in the case of any queries related to the processing of personal data:
Dorli Muhr
E-Mail: [email protected]
Documents and information, in particular information pertaining to the contractual partner’s financial circumstances, customer structure and expertise, must not be divulged to third parties. The contractual parties have agreed a strict and comprehensive non-disclosure obligation in this regard. The parties mutually agree to subject any third parties, their employees, authorised representatives or (sub)contractors to this non-disclosure obligation.
XI. Special right to withdraw for consumers
If the order is placed remotely, particularly by phone, fax or online, the consumers as per KSchG shall be entitled the withdraw from the contract within 14 days, calculated from the date the contract is concluded (receipt of order confirmation). This right to withdraw shall not apply if commissioned services are rendered within these 14 calendar days.
Withdrawal from the contract can be notified without stating reasons by sending a written notice of withdrawal. Adherence to the notice period shall be deemed satisfied if the notice of withdrawal is sent within the notice period. The date on the postal receipt is used to determine when the notice was sent for notices send by mail.
Please send your written notice of withdrawal to:
Wine&Partners, Muhr & Watzlawick OG
FN 219995Y, Commercial Court of Vienna
Peter-Jordan-Straße 6/3, 1190 Vienna
E-Mail: [email protected]
If the customer withdraws from the contract, Wine+Partners shall reimburse all payments received without charging any fees within 14 days of receipt of the notice of withdrawal. In principle, the same payment method used for the original transaction shall be used for the refund. However, the use of another payment method is possible. The customer shall not be entitled to any claims arising from the justified retention of the refund.
The right of withdrawal shall not apply to contracts for the supply of digital content on physical data carriers (such as credit notes/vouchers digitally provided to the customer) once the customer has stated a desire for immediate access to the digital content and performance of the contract commences prior to the end of the withdrawal period.
XII. Ceased services; Cancellation; Termination; Premature cancellation
In the event that services commissioned by the customer are ceased for reasons that fall within the customer’s sphere of influence, in particular due to a cancellation or unilateral modification of the deliverable by the customer, the customer shall be required to pay the agreed fee in full. Section 1168 of the Austrian Civil Code (ABGB) shall apply accordingly, with the proviso that the allowance is excluded.
If a commissioned service is ceased for reasons that fall neither within the sphere of influence of the customer nor Wine+Partners, the customer shall be required to pay the agreed fee in full. Wine+Partners shall not be deemed in default of performance in the event of this kind of delay. The customer shall accordingly not be entitled to demand completion or performance of the ceased services. In the event that Wine+Partners completes the order within a reasonable period once the hindrance no longer exists, the customer must accept the services and pay in full.
The parties reserve the right to dissolve the contractual relationship for good cause following a written warning and after granting a 14-day grace period. Good cause is deemed to exist, in particular,
if the performance of the commissioned services is deemed unfeasible on grounds for which the customer is responsible, or delayed by a period of at least six weeks;
if legitimate concerns exist with regard to the customer’s creditworthiness and the customer fails to provide advance payment or other suitable security at the request of Wine+Partners;
if the customer continually or repeatedly violates its contractual duties (in particular payment obligations and duty to comply)
Continuing obligations agreed for an unlimited term (e.g. social media management, ongoing media relations, etc.) may be terminated by either contractual party with three months’ notice to the end of the quarter, subject to deviating provisions in individual contracts.
XIII. Warranty
The customer must inform Wine+Partners of any defects within 8 days after delivery/performance or detection of the defect (concealed defects) in writing and provide a detailed description. The service shall be deemed duly rendered by Wine+Partners if no defects are notified within this period. Following this, warranty claims and claims for compensation in addition to the right to appeal due to errors are excluded.
If defects are present and the customer duly notifies them in time, the customer shall be entitled to decide between repair or replacement. In this case, Wine+Partners shall be required to remedy the defect within a reasonable period, during which the customer must assist Wine+Partners with all actions required to investigate and remedy the defect.
Wine+Partners reserves the right to refuse repair of the deliverable if this is not feasible or would constitute disproportionate effort on the part of Wine+Partners. Solely in this case is the customer entitled to demand a price reduction or redhibition. Any other claims for a price reduction or redhibition are hereby excluded.
Warranty claims must be asserted within six months of delivery or performance. The right to regress against Wine+Partners as per Section 933b, para. 1 ABGB shall cease one year after delivery or service provision.
The onus of proof as per Section 924 ABGB is hereby excluded. The customer is required to prove the existence of the defect at the time of delivery, the time the defect was detected and the timeliness of the notice of defects.
The customer is not entitled to withhold payment due to complaints.
The provisions of Section 13 shall not apply for consumers as per KSchG.
XIV. Compensation
Wine+Partners shall be liable for all damages from injuries to life, body and health in accordance with the pertinent statutory provisions, provided it is culpable.
Wine+Partners shall only be liable for all other damages if the damage can be attributed to intent or blatant gross negligence on the part of Wine+Partners, its legal representatives or executives.
Compensation for consequential losses, pecuniary damages, and damages from third-party claims is hereby excluded.
Wine+Partners does not assume any liability for the accuracy of content specified or approved by the customer.
Wine+Partners shall not be held liable for third-party products or services.
Claims for compensation are limited to the amount of the net order value.
The above limitations of liability apply to all claims for compensation irrespective of their legal grounds. They also apply in the case of claims for compensation asserted by a customer against Wine+Partners employees or vicarious agents.
XV. Final provisions
All agreements, subsequent amendments, supplements, ancillary agreement, etc., require the written form. This written form requirement may only be waived by a written agreement between the customer and Wine+Partners.
The contractual relationship between the customer and Wine+Partners is governed by Austrian law with the exclusion of the provisions of conflict-of-law and referral norms. The UN Convention on the International Sale of Goods shall not apply.
The place of performance is the registered office of Wine+Partners at the time the order is placed. When the goods are shipped, the risk transfers to the customer once Wine+Partners hands the goods to the selected transportation company.
The jurisdiction of the court of competent jurisdiction in Vienna is agreed for all legal disputes arising from the contractual relationship between the customer and Wine+Partners. Alternatively, Wine+Partners reserves the right to take legal action against its contractual partners at their place of general jurisdiction.
In the event that individual provisions of these T&Cs are found to be void or unenforceable this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The void or unenforceable provision must be replaced with a legally effective provision that conveys the intent and purpose of the original void or unenforceable provision.
Version: April 2021