General terms and conditions.
For consulting and services in the field of advertising, digital game design, digital visualizations and
imaging by Friendly Fire.
Friendly Fire (hereinafter referred to as ”FF”) shall render the consulting and services to the client as agreed upon in an individual contract (hereinafter referred to as the “Contract”). The present General Terms and Conditions [“GTCs”] apply to all present and future consulting and services performed by FF for the client, even if the GTCs are not explicitly referred to in the Contract. Any terms and conditions stipulated by the client shall apply only if expressly accepted in writing by FF.
2. Cooperation between the parties to the contract
2.1 FF shall receive from the client all the documents, information, and data necessary to deliver the agreed services in the form as requested by FF. As far as FF creates or adapts designs or provides design services for the client under this Contract, the client shall provide to FF a complete requirements specification as well as all the required test data in the form that FF requests. The user requirements specification shall become binding as soon as FF consents to it in writing. Upon request, FF shall provide support to the client in drawing up the user requirements specification against separate compensation.
2.2 The client shall use its best efforts to support FF in delivering the services and take all the measures required to attain the project goals which do not expressly fall under the obligations of FF. The client shall keep additional copies of all data handed over to FF on its own premises to ensure that restoration will be possible in case the data is damaged or lost. Support as well as services and products to be supplied by the client shall be provided at
no cost to FF.
2.3 Each party shall name to the other party an appropriately qualified employee who shall be capable of providing relevant information required for the Contract to be executed and of either taking or initiating any necessary decisions.
3. Service delivery
3.1 The schedule and the detailed services shall be defined in the Contract. Unless otherwise agreed upon, FF shall deliver the services on its own premises. As far as FF performs activities on the client’s premises, the client shall provide adequately equipped workplace(s).
3.2 In delivering the services, FF shall have the right to use third parties.
4. Changes in deadlines and scope of services
4.1 The scheduled deadlines agreed upon in the Contract shall be extended appropriately if FF is prevented from delivering the agreed services for reasons for which FF is not responsible. Any additional expenses arising to FF from such events shall be borne by the client.
4.2 Changes in the scope of services in terms of quality and/or quantity (change requests), especially changes in the client requirements specification or the accepted specifications, shall be subject to written agreement, with the related deadlines and compensations having to be adjusted accordingly. Unless otherwise agreed upon, FF shall provide extra services only against applicable payment to be agreed in advance in writing.
5. Remuneration and retention of title
5.1 Unless otherwise agreed upon, FF shall calculate the amounts payable in compensation on the basis of hourly rates specified in the Contract. As far as FF provides services at fixed prices (fixed or all-in prices), FF shall be entitled to request an advance payment of at least fifty percent (50%) of the fixed price (fixed or all-in price); and payment dates shall be agreed in the Contract dependent on the progress of service delivery (“milestones”). Irrespective of the pricing model, FF’ prices shall be always considered net prices exclusive of VAT or any other applicable taxes, which shall be charged separately.
5.2 Payment shall be due within fourteen (14) days from the date of invoice without deductions. If the client defaults in payment, FF shall be entitled to claim interest on arrears as legally applicable. Should the client’s default in payment exceed 14 days, FF shall have the right to cease the delivery of all services without the need of so notifying the client in advance and to make the compensation for all services already provided immediately due and payable notwithstanding any dates fixed for payment.
5.3 Travel time of FF employees shall be considered working time. In addition, the client shall reimburse travel costs at the same rate as they occur. In the case of travel by car, the legally applicable mileage-based flat rate shall be charged. In the case of travel by train, the price for a economy-class ticket shall be charged; in the case of travel by airplane, the price for a economy class ticket shall be charged. Other ancillary expenses, such as telephone costs, shall be charged as incurred.
5.4 The client shall not have the right to withhold or offset payment on the grounds of any warranty claims or other claims unless approved of in writing by FF or asserted by court order. Until the compensation due to FF has been paid up in full, plus interest and cost, FF shall reserve the title to all goods delivered by FF. Unless otherwise agreed upon, the client shall not have the right to use the products and services delivered by FF until having fully paid up all amounts due to FF.
5.5 All fees, taxes and duties arising under this Contract, such as for instance legal transaction fees, import taxes or withholding taxes, shall be borne by the client. In case FF is charged with any such fees, taxes or duties, the client shall fully indemnify FF against any payments thereof.
6. Rights to results, confidentiality
6.1 Unless otherwise agreed upon, the client receives no rights to the results produced by FF other than those specifically granted in this Section 6. Without limiting the generality of the foregoing, client shall not modify, create derivative works from, distribute, publicly perform, publicly display or sublicense the results.
6.2 As far as the delivery of services by FF includes the delivery of services supplied by third parties, the special terms and conditions (in particular license conditions) of the respective vendor shall prevail.
6.3 Each of the parties to the Contract shall maintain secrecy vis-a-vis third parties concerning all information, documents and data disclosed to them in the context of the Contract and marked as confidential. The obligation to maintain secrecy shall not apply to documents, information and data which are already general state of the art in the public domain at the time they are handed over to the respective other party or later become general state of the art in the public domain without any fault on the part of the receiving party or in respect of which the receiving party can prove that they either (a) were already state of the art at the receiving party’s when they were handed over, or (b) later became state of the art and know-how at the receiving party’s independently of any communication with the other party to the Contract, or (c) were disclosed to the receiving party by third parties, e.g. under a license agreement. The obligation to maintain secrecy shall remain in effect even after the termination of the contract.
7. Acceptance and warranty
7.1 As far as the design services (shortly called “designs”) are to be created or adapted by FF, such designs shall be submitted to acceptance procedures by the client immediately after they have been made available for acceptance. If defects are identified during acceptance, FF shall remove the defects within a reasonable period of time at no cost to the client and then make the designs available for renewed acceptance. If the client fails to perform acceptance procedures for any reason other than the presence of a major defect that significantly impairs the use of the designs, the designs shall be considered accepted 4 weeks after having been made available for acceptance, but in any case as soon as it is being used or passed on by the client. These provisions shall apply mutatis mutandis to documents, such as detailed specifications or client requirements specifications, to be drawn up by FF under the Contract. After acceptance by the client, such documents shall be regarded as the only basis for service delivery by FF
7.2 Defects that occur within a warranty period of 1 month (for game designs- six (6) months) after acceptance of the designs are duly given notice of by the client in writing shall be cleared by FF within a reasonable period of time at no cost to the client. Client shall submit all documents, information and data necessary for fault clearance purposes as may be requested by FF.
7.3 As regards design scopes which the client has extended, FF shall provide warranty up to added extention. In all other respects, warranty for designs modified by the client without the prior consent of FF shall be excluded, even if a fault occurs in a non-modified part, unless the client proves that there is no causal relationship between the fault and the modifications made by the client.
7.4 The warranty provisions set forth in Section 7 shall apply mutatis mutandis to deliveries and services provided by FF. However, as far as the delivery of services by FF includes the delivery of services and products supplied by third parties, the special terms and conditions of warranty of the respective vendor shall prevail.
7.5 Any claims for warranty raised by the client exceeding those mentioned in the present General Terms and Conditions shall be excluded, irrespective on which legal grounds they might be based.
8.1 To the extent permitted by mandatory law, FF shall in no case be liable for indirect damage, loss of information or data, operating interrupts, loss of earnings and other consequential damages.
8.2 Any warranty and damage claims from the client other than those expressly mentioned in these General Terms and Conditions, irrespective of the legal grounds they might be based on, in particular those due to loss or damage resulting from consulting, support in the implementation of design products, or software product defects, shall be excluded unless there is an obligatory liability, as for instance for damage caused intentionally or by gross negligence proved by the client.
9. Place of jurisdiction, applicable law
9.1 All disputes arising out from a Contract, including or related to it, including those arising from or concerning its interpretation, invalidity, performance or termination, as well as the disputes for filling gaps in a Contract or its adaptation to newly established facts, shall be settled by an amicable effort of both parties.
9.2 If an attempt at settlement has failed the place of arbitration shall be Vienna, Austria.
10. Term of Contract
10.1 FF shall deliver the consulting and design services either for the duration of the project agreed upon with the client or for the duration agreed upon in the Contract. As far as services under this Contract are provided on an ongoing basis, each of the parties to the Contract shall have the right to terminate the Contract in writing by registered mail giving 1-month‘s notice. Any designs not yet accepted at the time the Contract is terminated shall in any case be completed and compensated for under the terms and conditions of the Contract.
10.2 In all other respects the parties to the Contract shall have the right to prematurely terminate, in writing by registered mail, a Contract concluded for an indefinite period of time for good cause. Good cause shall exist, in particular, when the other party’s property and assets are subjected to insolvency proceedings or when the opening of such proceedings is rejected due to a lack of assets, or when the other party to the Contract violates material obligations under the Contract, in particular, payment obligations, so that the terminating party can no longer be reasonably expected to continue the Contract.
11. Concluding clauses
11.1 Collateral agreements and alterations to the Contract need be made in writing in order to be effective.
11.2 FF shall have the right to transfer the Contract with all its rights and obligations to third parties. The client must not transfer rights and obligations under the Contract without FF’ prior written consent.
11.3 If any of the provisions of the Contract is or becomes invalid, this shall not serve to invalidate the remaining provisions thereof. In such cases, the parties shall make every effort to find provisions whose business result would match those of the invalid provision as closely as possible.