General Terms and Conditions of Art Thinking PTY LTD
Effective from November 01, 2020
CONTENTS
Preamble
General Terms and Conditions / Scope of Validity
Requirement of Written Form
Scope of Services / Additional Services
Co-operation Obligations
Acceptance
Prices, Taxes and Duties
Supply Dates
Payment
Copyright and Utilisation
Publications
Reservation of Title
Cancellation
Non-fulfilment of the Commission
Warranty
Indemnity
Loyalty and Recruitment Ban
Final Provisions
1. PREAMBLE
1.1. ART THINKING PTY LTD is an Australian company
1.2. The supplies and services of ART THINKING shall be rendered in the form of
- Consulting services and/or
- Elaboration of concepts, feasibility studies, comprehensive and detailed analyses and/or
- Creation of software applications, including involvement in installation and initial activation, and/or
- Media installations, including project handling, and/or
- Creation of imagery, motion pictures, computer animations.
2. GENERAL TERMS AND CONDITIONS / SCOPE OF VALIDITY
The supplies and services of ART THINKING shall be subject exclusively to these General Terms and Conditions, excluding any purchasing conditions of the commissioning party to the contrary. This shall also hold for future commissions awarded to ART THINKING, even if this is not explicitly stated. Conditions that deviate from these General Terms and Conditions shall only apply if they are explicitly agreed upon in writing.
3. REQUIREMENT OF WRITTEN FORM
Tenders made by ART THINKING shall be considered non-binding and shall only become legally effective after a written commission confirmation by ART THINKING following a commissioning. Verbal agreement shall also only be legally effective after being confirmed in writing.
4. SCOPE OF SERVICES / ADDITIONAL SERVICES
4.1. The scope and content of the services to be rendered by ART THINKING in line with a commission shall solely arise from the description of services contained in the tender provided by ART THINKING, unless deviations or additions are agreed upon in writing over the course of the subsequent commissioning.
4.2. It shall be assumed that the commissioning party has examined the information and documents that it provides to ART THINKING for the purpose of specifying the services comprised in the commission to be included in ART THINKING’s tender regarding their correctness, suitability and completeness. Once these documents and information have been made available by the commissioning party, ART THINKING shall not bear any special obligation to review these, but shall be liable for reporting potential inadequacies without delay as these emerge over the course of the utilisation of these documents and information.
4.3. The concepts, feasibility studies and/or comprehensive or detailed analyses that serve as the basis of the commission and that were created by ART THINKING for the commissioning party prior to the agreement shall be considered unconditionally accepted by the commissioning party upon commissioning. If the creation of such a concept, feasibility study and/or comprehensive or detailed analysis represents part of a service included in a commission that also comprises the corresponding implementation services, the prior written approval of the commissioning party shall be required before ART THINKING is obligated to perform such implementation services.
4.4. Subsequent revisions or additions desired by the commissioning party to the description of services upon which the commission is based shall be charged separately if they lead to additional costs for ART THINKING.
5. CO-OPERATION OBLIGATIONS
5.1. The commissioning party shall provide the information, documents and/or materials (hardware etc.) that it is liable to supply to ART THINKING at its own expense, punctually and completely during normal working hours. The commissioning party shall also bear sole responsibility for attaining all the permits from authorities and authorisations from third parties which it is liable for providing so that the services of the commission may be performed.
5.2. The commissioning party shall be liable for the information, documents and materials it provides being suited to the purpose of the contract. It shall indemnify and hold ART THINKING harmless against these not complying with the legal and government regulations, not being operationally reliable and their utilisation in line with the contract not breaching the rights of third parties.
5.3. Regarding the information, documents and/or materials provided by the commissioning party to ART THINKING for its contractual services – and if only for test purposes –, ART THINKING shall bear no obligation to special custody, care or insurance of these, unless another agreement has been made for a particular case. ART THINKING shall only be liable for damages or loss in cases of malice or gross negligence.
5.4. If ART THINKING provides equipment and/or parts for performing services – and if only for test purposes – and the commissioning party utilises these in actual operations, the commissioning party shall bear the sole responsibility for securing the real data in an appropriate manner.
5.5. In the case of on-site installations, the following rooms shall be provided, if necessary: Workroom for ART THINKING staff (including office technology infrastructure), lockable storage room, server room etc. The specific rooms shall be stipulated in the contract.
5.6. If a specific layout / building development is of importance for the fulfilment of the commission (e.g. architectural art), ART THINKING shall be invited to construction-related meetings in due time and continually. These agreements shall serve to ensure the trouble-free development of the installation in its spatial and site-specific context. Moreover, ART THINKING shall be provided with the up-to-date plans for the respective installation location.
5.7. The commissioning party shall also ensure that the installation location be cleanly swept and free of dust in due time and in line with the jointly agreed upon time schedule.
6. ACCEPTANCE
6.1. Unless only consulting services or the creation of a concept, feasibility study and/or comprehensive or detailed analysis represent the object of the commission, the services to be performed by ART THINKING shall require formal acceptance following completion.
6.2. The acceptance date shall be mutually determined by both contractual parties. In the case of partial supplies, partial acceptance shall also be possible. The acceptance of a program and/or project shall be confirmed by the commissioning party in a protocol (review regarding correctness and completeness based on the description of services accepted by ART THINKING and/or according to the concept). If the commissioning party allows the determined acceptance date to pass without making use of it, the service shall be considered accepted.
7. PRICES, TAXES AND DUTIES
7.1. All prices offered shall be considered quoted in AUD and without general service tax (GST). They shall only apply to the respective commission. The prices offered shall be considered ex ART THINKING’s registered office. The costs for data media and transport (including insurance), packaging and contractual and disposal contribution fees shall be separately borne by the commissioning party. In case of commissions for which explicitly fixed prices have not been agreed upon, ART THINKING shall be entitled to charge the list prices valid on the date of supply, where the list prices shall be decisive on the date of supply for hardware and standard software, whereas the prices on the day the service is performed shall be decisive for any other services, for instance consultation, training, installation, service etc.
7.2. Costs for travel allowances, per diems and overnight expenses shall be invoiced to the commissioning party separately and in line with the respectively valid rates. Travel time shall be considered working time. Any caveat to this clause must be specifically stated in the conditions of the proposal.
7.3. If fees, taxes or other duties are incurred or levied in connection with the provision or creation of the object of the contract, these shall be borne by the commissioning party. This shall also apply for duties that are introduced by means of a law or decree after a commission has been confirmed.
7.4. If the exchange rate of the AUD has changed by more than 3% vis-à-vis an agreed upon non-AUD currency, ART THINKING shall be entitled to charge the difference to the commissioning party, where the right of cancellation shall be excluded in such a case.
7.5. If ART THINKING has created design, concept and elaboration recommendations for the commissioning party, but an implementation commission does not follow, ART THINKING shall be entitled to charge an appropriate compensation remuneration, unless it was explicitly agreed upon that these recommendations are free of charge.
8. SUPPLY DATES
8.1. A mutual time schedule shall be created upon commissioning.
8.2. The agreed upon fulfilment dates shall presume that the commissioning party has fulfilled its co-operation obligations to the stipulated extent, in line with Point 5. Supply delays and cost increases that arise due to incorrect, incomplete or subsequently revised details and information and/or documents provided by the commissioning party shall not be considered ART THINKING’s responsibility nor shall they lead to a delay by ART THINKING.
8.3. In the case of a supply delay that results from reasons within ART THINKING’s sphere of influence, the commissioning party shall set ART THINKING an appropriate grace period of at least four weeks.
8.4. In the case of commissions that comprise several units and/or steps, ART THINKING shall be entitled to provide partial supplies and/or issue invoices for partial supplies.
8.5. Force majeure, industrial conflicts, natural catastrophes and transport blockades, as well as other circumstance that are outside of the sphere of influence of the commissioned party, shall release ART THINKING from its obligation to perform services for the duration of the interruption.
9. PAYMENT
9.1. The invoices issued by ART THINKING, including goods and services tax (GST), shall be due 20 days after the invoice date without any deduction or fee. In the case of invoices for partial supplies, the payment conditions stipulated for the overall commission shall hold analogously.
9.2. In the case of commissions that comprise several units (e.g. programs, trainings etc.), ART THINKING shall be entitled to invoice the commissioning party after the supply of each individual unit or service.
9.3. Compliance with the agreed upon payment conditions shall represent an essential condition for the performance of the supply and/or fulfilment of the contract by ART THINKING. Non-compliance with the agreed upon payments shall entitled ART THINKING to stop on-going works and cancel the contract after setting a grace period. All associated costs shall be borne by the commissioning party. In the case of late payments, the legally stipulated late payment fees shall be charged.
9.4. The commissioning party shall not be entitled to retain a payment on the grounds of existing counterclaims or to offset a payment obligation with counterclaims, unless these have been explicitly acknowledged by ART THINKING or been stipulated by a court.
10. COPYRIGHT AND UTILISATION
10.1 The scientific and artistic capital of ART THINKING is based on its individual developments over years of work for a number of projects (background technology). The commissioning party shall acknowledge ART THINKING’s special interest in protecting and keeping this background technology, as well as draft materials, documentation and knowhow, confidential, regardless of whether an explicit copyright exists in a particular case.
The following regulations shall apply to works created by ART THINKING (in particular to design services in any form whatsoever, as well as especially but not exclusively to media installations, sculptures and/or motion pictures and computer animations, as well as to findings of an investigation, analyses, evaluations, methods, plans, sketches, models, other documentation and files); this shall apply regardless of an explicit copyright protecting these services. All rights to the results of the provision of services in line with the commission that have been achieved by ART THINKING, shall belong to ART THINKING. The fact that the commissioning party has granted a commission shall not imply that it acquires the permission and/or right to utilise the work. Solely on the condition that the contract is fulfilled in full shall grant the commissioning party the right to utilise the work for the purpose stipulated in the contract. This shall establish the authorisation to use the work that is limited to the purpose of the contract and is neither exclusive nor transferrable.
Utilisation outside of the scope and/or the contractual purpose (especially, but not exclusively also outside of the contractually stipulated location), as well as any transfer to third parties, whether for remuneration or free of charge, shall be considered excluded. This shall explicitly hold for the case that the results of the work were individually developed and/or further developed for the commissioning party.
10.2 Further-reaching utilisation authorisations shall be agreed upon separately in a written contract.
10.3 ART THINKING shall be entitled to utilise the generally available data, information, ideas and concepts it collects over the course of providing the services in line with the commission (also in digital form) without any restrictions. It shall also be possible to use them for the fulfilment of a new commission.
10.4 If the services of ART THINKING that have been commissioned include the provision of software, the commissioning party shall solely be granted the non-exclusive and non-transferrable authorisation to utilise the work for the purpose stipulated in the contract, unless a written contract explicitly stipulates otherwise. This utilisation authorisation shall apply to the utilisation of the software in association with the stipulated hardware at the agreed upon location of operation. Utilisation of the software outside of the scope of this utilisation authorisation by the commissioning party and, in particular, the transfer of the software to third parties, whether for remuneration or free of charge, shall be excluded. This shall explicitly hold for the case that the software was individually developed and/or further developed for the commissioning party.
10.5 ART THINKING shall retain all copyrights on and rights of utilisation of the software; this shall also hold in the case that the commissioning party has been involved in such development work, be it by means of providing ideas, pre-drafts or other contributions. ART THINKING shall therefore be free to adapt software developments, draft materials and/or documentation that were individually created for the commissioning party in line with Point 10.3, regardless of whether the commissioning party was involved in the development, for other purposes that are not associated with the contract with the commissioning party and dispose of them in a changed or unchanged form.
10.6 The commissioning party shall treat software, related draft materials and/or documentation as confidential and take the necessary security measures to protect these from unauthorised disclosure to third parties. The commissioning party shall also observe these principles within the scope of the free utilisation rights obligatorily granted to it by law and, in particular in the cases of creating back-up copies and de-compilation.
If it is necessary that the interfaces be revealed to create interoperability for software provided by ART THINKING, the commissioning party shall commission ART THINKING to do so and compensate it for costs incurred. The commissioning party shall be entitled to create copies for archiving and data security purposes on the condition that the software not include an explicit prohibition by the licensor or a third party and that all copyright and ownership details be transferred to these copies without being revised.
10.7 If, contrary to what was stipulated above, the commissioning party is granted a utilisation right to the software in a specific case, ART THINKING shall nevertheless remain entitled to use it for the purpose of a general presentation or exhibition of its portfolio of works and, above all, ART THINKING shall reserve the right to dispose of it in a changed or unchanged form, just like a creator. The commissioning party shall acknowledge ART THINKING’s special interest in this regard in association with its basic orientation in line with Point 1.1 of the Preamble.
10.8 ART THINKING shall also have the right to further dispose of and/or to further develop its basic artistic ideas, style characteristics and form languages without restrictions, even if the commissioning party is granted a utilisation right to ART THINKING’s creative services in a specific case.
10.9 Exercising the utilisation rights to software granted to the commissioning party by ART THINKING shall definitely presume the complete fulfilment of the contractually agreed upon remuneration obligations by the commissioning party.
10.10 Copyrights, trademark rights, labelling rights and knowhow, as well as non-protected inventions, business experience and trade secrets that were disclosed within the scope of the co-operation, shall still be held exclusively by ART THINKING and/or its licensors.
10.11 Neither the commissioning party nor potential third parties shall change or remove label elements, ownership details and mentions of protective rights. This shall also hold for accompanying materials. ART THINKING shall be entitled to refer to the contractual relationship with the commissioning party or the commission itself on its website and in its advertising materials and also to add the commissioning party’s logo.
10.12 All of ART THINKING’s existing ideas, knowhow, technical developments and patents (as well as their registration) which are not the result of a commission, but are utilised by ART THINKING to fulfil a certain commission shall remain the exclusive property of ART THINKING.
10.13 All project-relevant artistic, content-related and technical works and documents which were provided by one contractual party to the other either before conclusion of the contract or as a consequence of the same, shall remain the exclusive property of the provider and shall be treated by the other contractual party as confidential information. These documents which were provided shall solely be utilised for the corresponding commission.
10.14 ART THINKING shall be obliged to disclose to the commissioning party solely those results which are attained in line with commissions whose explicit objective is the creation of patentable research and development results and are obviously patentable and – on the condition of payment in full of the corresponding commission and inventor remuneration – to transfer the associated rights to the commissioning party without restrictions for the purpose of registering a patent. In this case, the commissioning party shall assume all costs. If the commissioning party forgoes the registration of patentable results or does not undertake the registration in due time, the right shall remain with ART THINKING.
10.15 It shall be at ART THINKING’s discretion to make use of the services of third parties to perform its services.
10.16 If necessary and possible in line with licensing law, copyrighted works (e.g. software, images and/or sound materials) of third parties utilised by ART THINKING shall be made available to the commissioning party on the basis of and in line with the provisions of a licensing contract to be separately concluded by the third party and the commissioning party.
10.17 If the commissioning party itself makes use of the services or works of third parties in association with ART THINKING’s services, only the commissioning party shall be liable for the compliance with the licensing and utilisation conditions of the third party.
10.18 ART THINKING shall release the commissioning party from any claims made by third parties against ART THINKING based on breaches of protective rights regarding developed or provided works and programs in their constitution stipulated in the contract, but only if the breach of rights of the third party was grossly negligent or malicious. The commissioning party shall guarantee that it is entitled to utilise and provide the accompanying materials (e.g. software, images and/or sound materials) made available to ART THINKING so that it may fulfil its obligations. In this connection, the commissioning party shall indemnify and hold ART THINKING harmless against any claims lodged by third parties.
10.19 If the appropriate utilisation of a commission result leads to a claim of a (alleged) breach of a protective right of a third party, the commissioning party shall immediately notify ART THINKING in writing. In this case, ART THINKING shall appropriately support the commissioning party in its refutation of such claims in the spirit of the aforementioned provisions. ART THINKING shall definitely not be responsible for the consequences of a breach of combination or process patents that concern the utilisation of the commission result in connection with other goods/services that are not provided by ART THINKING. Moreover, ART THINKING shall by no means be liable for subsequent damages that are attributable to a breach of protective rights, court and/or other legal costs incurred by the commissioning party or payments of damages awarded to third parties by a court.
11. PUBLICATIONS
11.1 ‘Publications’ shall be understood to mean any form of publication of knowledge or results, in particular in print or electronic media, as well as by means of presentations or lectures or any other manner.
11.2 It shall be observed that trade secrets that are revealed to the commissioning party or ART THINKING over the course of their co-operation are to be kept strictly secret.
11.3 A publication about results attained within the scope of a commission shall only occur after clarification and/or registration of potential protective rights and under consideration of the confidentiality provisions.
11.4 Publication by ART THINKING of knowledge or results from a commission shall require the written approval of the commissioning party. If the commissioning party does not provide a justified refusal within six weeks of submission of a publication suggestion, ART THINKING shall be entitled to publish. Approval shall not be required if the commissioning party does not remunerate a complete commission in due time and in full, if the publication only refers to part of the commission that was worked on by ART THINKING itself and if the publication does not contain any confidential information about the commissioning party from the respective commission.
11.5 Publications by the commissioning party of knowledge or results attained by ART THINKING shall presume written approval by ART THINKING. If ART THINKING does not provide a justified refusal within six weeks of submission of a publication suggestion, the commissioning party shall be entitled to publish.
11.6 In the case of a publication by one of the contractual parties, the other shall be able to determine in which form it is noted in the publication.
11.7 Both the commissioning party and ART THINKING shall be provided with a specimen copy, preferably in electronic form, of each scientific publication (of knowledge or results attained within the scope of a commission) by the lead author.
11.8 It shall be made possible that students who have the permission of the commissioning party to potentially work with ART THINKING on commissions for study purposes can use their research work in the form of work experience reports, diploma theses or dissertations. A publication ban on these papers shall be possible within the scope of the statutory requirements for university studies and shall be undertaken, if necessary, in consultation with the commissioning party for a period of time common in the industry in order to clarify and register potential protective rights.
12. RESERVATION OF TITLE
12.1 Prior to payment in full of the purchase price, including potential interest and collection costs, the supplies of ART THINKING shall remain the absolute property of ART THINKING. The commissioning party shall not be entitled to assign, pledge, offer as a security or otherwise transfer the supply to a third party during this period.
12.2 The commissioning party shall ensure proper maintenance (service and repair) at its expense and immediately report damages to the purchased goods, a pledge on these goods or the transport of these goods to ART THINKING by means of a registered letter so that ART THINKING does not incur any damage to its property. ART THINKING’s ownership shall immediately be announced to every third party and ART THINKING shall immediately be notified.
12.3 The commissioning party shall be obliged to insure the goods under reservation of title at its expense and in an appropriate manner and prove the insurance cover to ART THINKING in writing upon ART THINKING’s request.
12.4 The commissioning party hereby conveys all claims and ancillary rights vis-à-vis third parties stemming from the further sale of the supply under reservation of title to ART THINKING, if the commissioning party is explicitly entitled to such a further sale in a particular case.
13. CANCELLATION
13.1 If it becomes evident over the course of the works that the fulfilment of the commission is actually or legally impossible, ART THINKING shall immediately notify the commissioning party. If no subsequent agreement can be reached on a changed, feasible fulfilment, ART THINKING shall be entitled to cancel the contract, where ART THINKING shall be compensated by the commissioning party for expenses it has already incurred.
13.2 Moreover, ART THINKING shall be entitled to cancel the contract, if
- it doubts the creditworthiness of the commissioning party after attaining a credit check or justified concerns arise regarding the liquidity of the commissioning party,
- insolvency proceedings are initiated regarding the commissioning party’s assets or an application for the initiation of insolvency proceedings is disallowed due to insufficient assets,
- the commissioning party does not fulfil its co-operation obligations, despite a grace period being set, and if it turns out that the tender made by ART THINKING is based on incorrect or incomplete information provided by the commissioning party.
13.3. Irrespective of potential indemnity claims of ART THINKING, the commissioning party shall pay for (partial) services that have already been performed in the case of a cancellation of the contract. This shall also apply if ART THINKING’s services have not been accepted by the commissioning party yet and/or if ART THINKING has undertaken preparatory measures. ART THINKING shall also be able to demand the reversal of the commission.
14. NON-FULFILMENT OF THE COMMISSION
If execution of the commission or part of the commission does not occur, despite ART THINKING’s willingness to provide the services, due to reasons that lie within the commissioning party’s sphere of influence, in particular if the commissioning party does not comply with its co-operation obligations, despite being granted a grace period, ART THINKING’s claim for appropriate indemnification shall amount to 20% of the net value of the commission, unless ART THINKING can prove a legal right to higher indemnification.
15. WARRANTY
15.1 The commissioning party shall examine all supplies provided by ART THINKING and report defects to ART THINKING within four weeks of acceptance, in line with Point 5. Otherwise, warranty and other rights shall not be applicable. The commissioning party shall bear the burden of proof that a potential defect it reports was already present at the time of acceptance.
15.2 In the case of a warranty claim against ART THINKING, rectification shall definitely have priority over reducing the price or rescinding the contract, where ART THINKING shall have the choice between rectification and exchange in the case of an existing rectification claim. In the case of justified defect complaints, the defects shall be rectified within an appropriate period, where the commissioning party shall make all measures necessary to examine and rectify the defects possible for ART THINKING.
15.3 Concerning software to be provided by ART THINKING, it shall be assumed that both contractual parties are aware of the fact that, commensurate with the current state of progress, minor malfunctions of the software cannot be ruled out, even despite exercising the utmost diligence. Thus, in such cases, it shall be considered agreed upon that ART THINKING does not have to warrant such minor defects.
15.4 Moreover, ART THINKING shall assume no warranty for errors, malfunctions or damages that are attributable to improper operation, changed operating system components, interfaces and parameters, use of inappropriate organisational means and data media, if such are mandatory, abnormal operating conditions (in particular deviations from the installation conditions) and transport damages.
In addition, ART THINKING’s warranty obligation shall not apply if software provided by ART THINKING is subsequently changed by the commissioning party’s own programmers and/or those of third parties.
15.5 Costs incurred by ART THINKING due to non-justified defect complaints lodged by the commissioning party shall be paid by the commissioning party, where it shall be assumed that appropriate compensation has been agreed upon. Costs for support, error diagnostics and rectification of errors and malfunctions for which the commissioning party is liable, as well as other corrections, changes and additions shall be assumed by ART THINKING against payment. This shall also be applicable to the rectification of defects if program changes, additions or other interventions have been undertaken by the commissioning party itself or by a third party.
15.6 All warranty claims shall be lodged by the commissioning party within one year of acceptance or the right to assert these in court shall be forgone.
16. INDEMNITY
16.1 ART THINKING shall only be liable for all types of damages (damages due to breach of faith, non-performance etc.) if it can be proved that ART THINKING acted maliciously or grossly negligently. Liability for slight negligence shall be excluded.
16.2 Compensation for consequential and property damages, unrealised savings, loss of interest and damages stemming from claims from third parties against ART THINKING shall definitely be excluded, if legally permissible.
16.3 In any case, an indemnity obligation concerning ART THINKING shall be limited to the amount of the respective commission volume.
17. LOYALTY AND RECRUITMENT BAN
The contractual parties shall be obliged to mutual loyalty. They shall forgo any recruitment or employment, via third parties, too, of the other contractual party’s employees who have worked on the implementation of commissions during the term of the contract and 12 months after the contract ends. A contractual partner who breaches this ban shall be obliged to pay a lump-sum indemnity in the amount of an annual salary of the employee.
18. FINAL PROVISIONS
18.1 Unless explicitly regulated otherwise in these General Terms and Conditions (e.g. in Point 3), the requirement of written form for notifications regarding parts of the contract shall be considered fulfilled by electronic, written notifications.
18.2 The contract shall only be subject to Australian Law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and conflict rules. Unless otherwise regulated, the legal regulations that apply to entrepreneurs shall be applicable; this shall also hold for disputes stemming from contracts with public corporations.
18.3 Regarding arbitration of all disputes that arise from a contract – including those concerned with whether a contract exists or not –, it shall be agreed upon that only the respectively competent court in Australia will be responsible.