Terms & Conditions

1. Scope and conclusion of contract

• Pennyworth Co GmbH (hereinafter "Pennyworth Co") provides its services exclusively on the basis of the following Terms and Conditions. These also apply to all future business relationships, even where they are not expressly referenced.
• Any side agreements, reservations, amendments or additions to these Terms and Conditions must be made in writing to be valid. This also applies to any waiver of this written-form requirement.
• Any terms and conditions of the client are not accepted unless expressly agreed otherwise in writing in an individual case. No separate objection to the client's terms by Pennyworth Co is required. Should individual provisions of these Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions or of the contracts concluded on their basis. Any invalid provision shall be replaced by a valid one that most closely reflects its intended meaning and purpose.
• Offers and cost estimates from Pennyworth Co are non-binding and valid for 14 days from the date of issue. Offers and cost estimates are quoted in euros excluding 20% VAT, based on current labour and material costs. Prices are subject to change.

2. Scope of services, project handling and client responsibilities

• The scope of the services to be provided follows from the description of services in the offer or any order confirmation issued by Pennyworth Co, together with any briefing notes. Subsequent changes to the scope of services require written confirmation from Pennyworth Co. Within the framework set by the client, Pennyworth Co has discretion in how the assignment is carried out.
• All deliverables from Pennyworth Co (in particular all drafts, outlines, mock-ups, proofs, copies and electronic files) are to be reviewed by the client and approved in writing.
• The client shall provide Pennyworth Co, in a timely and complete manner, with all information and materials required to deliver the service, in final, structured and verified form. The client shall inform Pennyworth Co of all circumstances relevant to the assignment, even if these only become known during its execution. The client bears the cost of any work that must be repeated or is delayed as a result of incorrect, incomplete or subsequently changed information. Any additional effort for data conversion is billed on an hourly basis.
• The client is further obliged to check the materials provided for the assignment (photos, logos, etc.) for any copyright, trademark or other third-party rights. Pennyworth Co is not liable for any infringement of such rights. If Pennyworth Co is held liable for such an infringement, the client shall indemnify and hold Pennyworth Co harmless and reimburse it for all disadvantages arising from third-party claims.

3. Third-party services and subcontracting

• Pennyworth Co is entitled, at its own discretion, to perform the service itself, to use qualified third parties as vicarious agents in providing the contractual services, and/or to substitute such services ("third-party services").
• Third parties engaged as part of a third-party service are commissioned either in Pennyworth Co's own name or in the name of the client. Pennyworth Co will select such third parties carefully and ensure they hold the necessary professional qualifications.
• Where Pennyworth Co commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of Pennyworth Co.

4. Deadlines and timelines

• Unless expressly agreed as binding, any stated delivery or performance deadlines are only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by Pennyworth Co. Agreed production periods always begin after the concept has been approved and all materials have been handed over in full and in the agreed form by the client. If delays occur here, Pennyworth Co is no longer bound by the originally agreed timeframe.
• If Pennyworth Co's delivery or performance is delayed for reasons beyond its control, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, the performance obligations are suspended for the duration and to the extent of the impediment, and the deadlines are extended accordingly. If such delays last more than four weeks, both the client and Pennyworth Co are entitled to withdraw from the contract.
• If Pennyworth Co is in default, the client may only withdraw from the contract after having set Pennyworth Co a grace period of at least 14 days in writing which has expired without result. The client's claims for damages due to non-performance or default are excluded, except where intent or gross negligence is proven.

5. Early termination

• Pennyworth Co is entitled to terminate the contract with immediate effect for good cause. Good cause exists in particular where: a) the performance of the service becomes impossible for reasons within the client's responsibility, or continues to be delayed despite a 14-day grace period.
  b) the client, despite a written warning with a 14-day grace period, continues to breach material obligations under this contract, such as payment of an amount due or cooperation obligations.
  c) there are legitimate concerns regarding the client's creditworthiness and, at Pennyworth Co's request, the client neither makes advance payments nor provides adequate security before Pennyworth Co performs.
  d) insolvency or composition proceedings are opened over the client's assets, or an application to open such proceedings is rejected for lack of assets to cover costs, or the client suspends payments.

6. Fees

• Unless otherwise agreed, Pennyworth Co's claim to a fee for each individual service arises as soon as that service has been rendered. Pennyworth Co is entitled to request advance payments to cover its costs. From an order value of EUR 3,000, or for orders extending over a longer period, Pennyworth Co is entitled to issue interim or advance invoices or to call up instalment payments.
• The fee is a net fee plus VAT at the statutory rate.
• All services provided by Pennyworth Co that are not expressly covered by the agreed fee are remunerated separately. All out-of-pocket expenses incurred by Pennyworth Co are to be reimbursed by the client.
• For all work by Pennyworth Co that, for whatever reason, is not carried out at the client's instigation, Pennyworth Co is entitled to the agreed remuneration. The offsetting provision of § 1168 ABGB is excluded.

7. Payment and retention of title

• The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in an individual case. This also applies to the onward charging of all out-of-pocket expenses and other costs. The goods delivered by Pennyworth Co and all rights of use remain the property of Pennyworth Co until full payment of the remuneration, including all ancillary obligations.
• In the event of late payment by the client, statutory default interest at the rate applicable to business transactions applies. The client further undertakes, in the event of late payment, to reimburse Pennyworth Co for any reminder and collection costs that are necessary for appropriate legal action. This includes in any case the cost of two reminder letters at standard market rates and one reminder letter from a lawyer engaged for collection. The assertion of further rights and claims remains unaffected.
• In the event of late payment by the client, Pennyworth Co may render immediately due all services and partial services provided under other contracts concluded with the client. Furthermore, Pennyworth Co is not obliged to provide further services until the outstanding amount has been settled. Where payment in instalments has been agreed, Pennyworth Co reserves the right, in the event of late payment of instalments or ancillary claims, to demand immediate payment of the entire outstanding debt (acceleration).
• The client is not entitled to offset its own claims against claims of Pennyworth Co, unless the client's claim has been acknowledged in writing by Pennyworth Co or established by a court.

8. Ownership and copyright

• All work products of Pennyworth Co, including those from presentations (e.g. suggestions, ideas, sketches, drafts, scribbles, finished artwork, concepts), including individual parts thereof, as well as the individual work pieces and original designs, remain the property of Pennyworth Co and may be reclaimed by Pennyworth Co at any time, in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right to use them for the agreed purpose. The acquisition of usage and exploitation rights in Pennyworth Co's work products always requires full payment of the fees invoiced by Pennyworth Co for them.
• Modifications or adaptations of Pennyworth Co's work products, in particular their further development by the client or by third parties acting on the client's behalf, are only permitted with the express consent of Pennyworth Co and – where the work products are protected by copyright – of the author (e.g. purchased stock material).
• Any use of Pennyworth Co's work products that goes beyond the originally agreed purpose and scope of use requires the consent of Pennyworth Co – regardless of whether the work is protected by copyright. Pennyworth Co and the author are entitled to separate, reasonable remuneration for this.
• In the course of producing deliverables or other commissioned works, Pennyworth Co may also use licensed stock material (photos, videos, music, etc.). The license terms of the respective provider apply exclusively to this material.

9. Attribution and references

• Subject to the client's written revocation, which is possible at any time, Pennyworth Co is entitled to refer to the business relationship with the client on its own marketing materials, and in particular on its website, using the client's name and company logo (reference notice).

10. Warranty

• The client must report any defects without delay – in any case within eight days of delivery/performance by Pennyworth Co, and hidden defects within eight days of their discovery – in writing, describing the defect; otherwise the service is deemed approved. In that case, the assertion of warranty and damage claims, as well as the right to challenge the contract on the grounds of error due to defects, is excluded.
• In the case of a justified and timely notice of defects, the client is entitled to have Pennyworth Co repair or replace the delivery/service. Pennyworth Co will remedy the defects within a reasonable period, with the client enabling Pennyworth Co to take all measures necessary to investigate and remedy the defect. Pennyworth Co is entitled to refuse to remedy the service where this is impossible or would involve disproportionately high effort for Pennyworth Co. In that case, the client is entitled to the statutory rights of rescission or price reduction. In the case of remedy, the client is responsible for delivering the defective (physical) item at its own expense.
• It is the client's responsibility to check the service for its legal admissibility, in particular under competition, trademark, copyright and administrative law. Pennyworth Co is not liable for the accuracy of content where this has been specified or approved by the client.
• The warranty period is six months from delivery/performance. The right of recourse against Pennyworth Co under § 933b para. 1 ABGB lapses one year after delivery/performance. The client is not entitled to withhold payments on account of complaints. The presumption rule of § 924 ABGB is excluded.

11. Liability and product liability

• In cases of slight negligence, any liability of Pennyworth Co for property or financial loss of the client is excluded, regardless of whether it concerns direct or indirect damage, lost profit or consequential damage from defects, damage due to delay, impossibility, positive breach of contract, fault at the conclusion of the contract, or defective or incomplete performance. The injured party must prove the existence of gross negligence.
• Any liability of Pennyworth Co for claims brought against the client on the basis of the service provided by Pennyworth Co (e.g. a marketing measure) is expressly excluded where Pennyworth Co has fulfilled its duty to advise or where no such duty was apparent to it, whereby slight negligence does no harm. In particular, Pennyworth Co is not liable for litigation costs, the client's own legal fees, costs of publishing judgments, or any damage claims or other claims of third parties; the client shall indemnify and hold Pennyworth Co harmless in this respect.
• The client's claims for damages lapse six months after becoming aware of the damage, but in any case three years after the act causing the damage by Pennyworth Co. Claims for damages, regardless of their legal basis, are limited in amount to the net order value.
• The data controller for data protection purposes is the client. The client must verify data protection compliance on its own behalf and at its own expense, and shall indemnify and hold Pennyworth Co harmless in data protection matters. The client is obliged to identify itself in writing as the data controller in connection with the engagement. For web projects this may be done in the legal notice, and for web promotions in the broadest sense within the terms of participation.

12. Special provisions for advisory, consulting and software services

• When a project is carried out, 40% of the order value is due on placement of the order, a further 40% on completion of the test version, and the remaining 20% on completion of the project. If delays occur after handover of the finished version that fall within the client's responsibility, final billing takes place no later than 3 weeks after handover by Pennyworth Co.
• The agreed fee includes one round of revisions by Pennyworth Co after completion of the test version. This takes place after initial acceptance by the client. For this, the client prepares a written list of corrections, which serves as the basis for the revisions. It is understood that these are limited to text corrections or minimal layout corrections. Should the requested changes go beyond this scope (change request), Pennyworth Co bills these services on a time-and-materials basis. Pennyworth Co undertakes to provide the client with a corresponding quote for this.
• On-site services (programming, training, kick-off, etc.) are billed according to actual time spent plus travel time. For one-way journeys of more than 50 km, travel expenses are also charged at the official mileage rate.
• The client acknowledges that any intervention in the program code, for example in the form of changes by the client or third parties, may impair functionality. Pennyworth Co assumes no liability for such impairments. Any repair work is billed on a time-and-materials basis.
• The client is solely responsible for meeting the system requirements at the provider hosting the website. Coordination work with a provider is billed on a time-and-materials basis. Pennyworth Co further points out that programs developed by Pennyworth Co for the server environment may not be portable, or only partially portable, to the systems of other providers.
• If Pennyworth Co uses third-party software (e.g. content management systems) for programming, the client must acquire a corresponding license. Unless separately stated, the fee payable for this is not included in the agreed fee for Pennyworth Co's services. Where Pennyworth Co uses third-party software for programming, the client is entitled to the right of use under the underlying license agreement, and the client will indemnify and hold Pennyworth Co harmless in the event of an infringement.
• Pennyworth Co provides no warranty for third-party software (e.g. content management systems). Maintenance (service releases, updates, etc.) of third-party software by Pennyworth Co must be governed by a separately agreed service contract.
• Unless otherwise agreed, HTML and CSS files are optimised for the most current and most widely used software versions, operating systems and hardware standards as at the start of development.
• The choice of programming language is at Pennyworth Co's discretion. Accordingly, Pennyworth Co provides no warranty that the chosen programming language can be reused by third parties or is supported by third parties, such as providers.
• Web server access credentials and administrator rights for CMS systems are generally not passed on to the client or third parties for as long as Pennyworth Co must provide warranty for the project. If the client insists on the access credentials being handed over, all warranty claims of the client lapse and any repair work is billed on a time-and-materials basis.
• Source code, for example of interactive files, as well as raw material from video productions, is without exception not handed over and remains the property of Pennyworth Co.
• Written documentation that goes beyond standard project management (meeting minutes, schedules, cost plans) – for example documentation of the program code or online manuals – must be agreed separately.

13. Privacy

• The client expressly agrees that Pennyworth Co may collect, store and process the data provided by the client (name, address, email, credit card details, bank transfer details) by automated means for the purposes of performing the contract and supporting the client, as well as for its own marketing purposes. The client agrees that electronic mail may be sent to it for marketing purposes until revoked.

14. Governing law

• The contract and all mutual rights, obligations and claims derived from it between Pennyworth Co and the client are governed by Austrian substantive law, excluding the UN Convention on Contracts for the International Sale of Goods.

15. Place of performance and jurisdiction

• The place of performance is the registered office of Pennyworth Co. In the case of shipment, the risk passes to the client as soon as Pennyworth Co has handed the goods over to the carrier it has chosen.
• The court with subject-matter jurisdiction at the registered office of Pennyworth Co is agreed as the place of jurisdiction for all legal disputes arising between Pennyworth Co and the client in connection with this contractual relationship. Notwithstanding this, Pennyworth Co is entitled to sue the client at the client's general place of jurisdiction.