08 General Terms and Conditions of Distillery Concept & Creation GmbH
1. General Provisions
1.1
These General Terms and Conditions ("GTC") apply to all present or future services and other legal transactions ("Services") entered into by Distillery Concept & Creation GmbH, Companies’ Register no. FN 320297a Regional Court of Innsbruck (Landesgericht Innsbruck), Leopoldstraße 9, 6020 Innsbruck, Austria (hereinafter referred to in short as "DISTILLERY") with contractual partners of DISTILLERY as customers or other recipients of services (hereinafter referred to in short as "Customer").
1.2
General conditions of the Customer, in particular general terms and conditions, shall not apply, even if DISTILLERY does not expressly object to them or if they are printed or referred to on the Customer's general templates such as order forms. Such conditions shall only apply if the contractual parties have reached a deviating written agreement in individual cases.
1.3
DISTILLERY reserves the right to amend these GTC. In the event of a change, DISTILLERY will provide the Customer with an updated version of the GTC. If the Customer does not object within a period of five working days, the amended GTC shall be deemed to have been agreed upon and all subsequent services provided by DISTILLERY to the Customer shall be subject to these amended GTC, even if no direct reference is made to them in the following anymore.
2. Offers and Conclusion of Contract
2.1
Offers and cost estimates by DISTILLERY are always subject to change, unless they are expressly designated as binding. Binding offers shall be valid for a period of 10 days from the date of issue, unless a separate period of validity for the offer is specified in the offer.
2.2
Documents such as illustrations, drawings as well as dimension and performance specifications, as well as public statements (e.g. on the website or in marketing documents) by DISTILLERY shall not be deemed to be warranted, unless they have been expressly designated as binding in the offer.
2.3
After acceptance of the offer by the Customer, the contractual relationship between DISTILLERY and the Customer shall be established by DISTILLERY sending a separate order confirmation. In any event, the contents of DISTILLERY's order confirmation shall be deemed to be the binding definition of the contents of the contract - should no separate agency contract be concluded (see clause 18.9) - unless the Customer objects in writing within 5 working days of receipt of the order confirmation.
2.4
The provisions of these GTC as well as those regulations which have been individually agreed in writing between DISTILLERY and the Customer shall continue to apply until all contractual or statutory periods, in particular those relating to compensation for damages, warranty, etc., have expired.
3. Prices and Payment
3.1
All prices indicated for DISTILLERY's services are in Euros and do not include taxes, fees and charges, excluding transport and packaging expenses as well as travel expenses at the usual rates for the industry, as well as excluding copyright or licence fees, etc. resulting from the performance of services, and excluding expenses for personal needs (drinks, meals, tips, etc.) (hereinafter all referred to as "Incidental Expenses"), unless otherwise agreed. These Incidental Expenses shall be borne by the Customer separately from the agreed remuneration and shall be invoiced additionally by DISTILLERY.
3.2
Unless otherwise agreed, the Customer shall, upon confirmation of the order by DISTILLERY and at DISTILLERY's request, make a down payment (Anzahlung) of up to 50% of the remuneration after DISTILLERY has issued an invoice. DISTILLERY shall not commence with the provision of services before receipt of the down payment. Delays due to late receipt of the down payment shall in any case be borne by the Customer. In addition, DISTILLERY shall be entitled at any time to request further amounts on account (down payments) from the Customer. Unless otherwise agreed, the remainder of the payment, including any Incidental Expenses, shall be paid by the Customer upon completion of the order.
3.3
Invoices from DISTILLERY are due for payment within 2 (two) weeks without discounts, rebates or other deductions for payment onto DISTILLERY's account. Exchange rate fluctuations and expenses shall be borne by the Customer.
3.4
DISTILLERY shall be entitled to send invoices by electronic means with legal effect. The Customer expressly agrees to the sending of invoices in electronic form.
3.5
DISTILLERY shall be entitled to refuse to provide services if the Customer is in default of payment. If the Customer defaults on payment of an invoice, the Customer shall also pay 8% interest p.a. above the 3-month EURIBOR rate as of the due date, as well as the necessary dunning and collection costs. This also includes the costs of two dunning letters in the customary market amount as well as a dunning letter from a lawyer commissioned with the collection. DISTILLERY is entitled to assign the dunning and collection process to professional party representatives, whereby the costs in this case shall be determined in accordance with the Austrian Lawyers' Tariff Act (Rechtsanwaltstarifgesetz).
4.0 Delivery Dates and Default
4.1
Performance dates stated by DISTILLERY shall not be binding unless they have been expressly agreed and designated as binding. The performance periods shall not commence until DISTILLERY has received the down payment (3.2).
4.2
If non-compliance with the performance date is to be feared or has already occurred due to force majeure, boycott, embargoes, labour disputes, riots, failure of means of transport, work restrictions, epidemics, default by suppliers or business partners, or similar events which are beyond DISTILLERY's control, the performance period shall be extended appropriately for the duration of the obstacle, without the Customer being entitled to assert any claims against DISTILLERY as a result thereout. DISTILLERY shall notify the Customer of the beginning and the expected end of such hindrances as soon as possible.
4.3
In the event that DISTILLERY should be in default with regard to binding performance dates, the Customer shall send DISTILLERY a written dunning setting a period of grace of at least 2 (two) weeks. Withdrawal from the contract by the Customer due to DISTILLERY's default shall only be permitted after the grace period set has fruitlessly expired.
4.4
If the Customer suffers any damage as a result of DISTILLERY's default in accordance with point 4.3, he shall be entitled to demand lump-sum compensation for default. This shall amount to 0.5 percent of the order value for each full week of delay. The Customer waives the right to assert any claims in excess thereof.
5. Early Dissolution of Contract
5.1
Both DISTILLERY and the Customer shall be entitled to prematurely dissolve the Agency Contract concluded between them without notice by written notification by registered letter with immediate effect for good cause, whereby the following reasons shall be considered “good cause”:
5.1.1
If the other contractual party seriously and persistently breaches its contractual obligations or neglects contractual obligations and fails to remedy the situation within 10 (ten) days of written notification of the breach;
5.1.2
if the party dissolving the Agency Contract cannot reasonably be expected to continue the contractual relationship until the agreed termination, taking into account all circumstances of the individual case and weighing the interests of both parties, or;
5.1.3
if insolvency proceedings have been legally opened against the other contractual party, or if such opening of insolvency proceedings has been rejected due to lack of assets to cover the costs.
5.2
In the event of early dissolution of the Agency Contract by the Customer without good cause within the meaning of the above points 5.1.1 to 5.1.3, the Customer shall in any event compensate DISTILLERY for any remuneration which DISTILLERY would receive in the event of full performance of the services, without any obligation on DISTILLERY to provide full performance of services in such case. Furthermore, the Customer shall in such a case not acquire any rights of use regarding any services already provided by DISTILLERY. The provision of sec. 1168 of the Austrian Civil Code, ABGB) (Allgemeines Bürgerliches Gesetzbuch) on any crediting right (Anrechnung) shall be excluded in any case. This provision shall not affect DISTILLERY's right to assert any further claims for damages going beyond that.
5.3
If the Customer dissolves the contractual relationship early- for any reason whatsoever - DISTILLERY shall be entitled to invoice the Customer for the services actually provided by DISTILLERY up to the dissolution of the contractual relationship. This provision shall not affect the afore-mentioned provision made in clause 5.2.
5.4
Furthermore, in the event of early dissolution of the contract, the Customer shall be obliged to hand over to DISTILLERY in full all plans, sketches, drawings, data carriers, devices and other documents, etc. (hereinafter referred to in short as "Items") produced in the course of performance of the contract, upon request by DISTILLERY.
6. Duties of cooperation, Duty of Inspection and Acceptance
6.1
The performance of services by DISTILLERY may depend on the fulfilment of the Customer's duties to cooperate. Such duties of cooperation are in particular the provision of necessary information, documents and suitable contact persons, the making of required down payments and the required release of work steps, etc.
6.2
All services provided by DISTILLERY (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, colour prints and electronic files) must be checked by the Customer and approved within 2 (two) working days of receipt by the Customer. If they are not released in due time, they shall be deemed approved by the Customer.
6.3
The Customer is obliged to immediately inspect services for defects on the acceptance date and to immediately give notice (Rügepflicht) of such defects in writing and in a clearly defined manner in an acceptance protocol. Insofar as any defects identifiable during the corresponding inspection are not contained in the acceptance protocol, the performance shall be deemed approved and the signing of the acceptance protocol shall be deemed a waiver of any further claims by the Customer.
6.4
Defects which are not recognisable on appropriate inspection ("hidden defects") must also be notified in writing and in a clearly defined manner without delay, at the latest, however, within 14 days from the time they are recognisable.
6.5
If the notification (Rüge) is not made in writing and in a clearly defined manner in the acceptance protocol or, in the case of hidden defects, within 14 days of their recognizability, the Customer shall no longer be entitled to any claims under warranty, damages due to the defect or due to any error as to whether the service is free of any defects.
6.6
The Customer shall furthermore ensure that the services provided by DISTILLERY are permissible and that all necessary permits and administrative decisions (Bescheide) are available, that conditions (Auflagen) are complied with and that no other legal or factual circumstances stand in the way of the performance of services.
6.7
The Customer shall itself check the legal admissibility of all DISTILLERY services, in particular with regard to competition law, labelling as well as trademark law, copyright law and administrative law, before releasing them and shall indemnify and hold DISTILLERY harmless in respect of any claims by third parties arising from any infringements.
6.8
The Customer shall also be obliged to check the documents it provides to DISTILLERY, such as photos, logos, etc., to determine whether the further use and processing (modifying) of such documents by DISTILLERY infringes or affects the rights of third parties of any kind whatsoever. The Customer shall indemnify and hold DISTILLERY harmless in respect of any claims by third parties arising from the infringement of such rights. If DISTILLERY has reasonable grounds to suspect that the documents provided, such as photographs, logos, etc., infringe the rights of third parties of any kind whatsoever, DISTILLERY shall be entitled to refuse the use or processing (modification) of same without this resulting in consequences of default as defined in clause 4.3; such refusal shall not entitle the Customer to assert any claims of any kind whatsoever against DISTILLERY.
7. Retention of Title
7.1
DISTILLERY reserves the right of ownership regarding created products or parts thereof - in particular regarding concepts, drafts or ideas - until all claims arising from the business relationship have been met by the Customer. DISTILLERY shall be entitled to externally mark its ownership regarding such products. In the event that DISTILLERY's property is lost while the products are in the Customer's sphere, the Customer undertakes to compensate DISTILLERY for all damage caused or arising thereof as a result.
7.2
The Customer is prohibited from assigning the services and products provided by DISTILLERY to a third party.
7.3
The Customer shall notify DISTILLERY immediately of all events affecting the retention of title, in particular of any enforcement measures, and shall refrain from any action if this is requested by DISTILLERY.
8. Warranty
8.1
DISTILLERY warrants for defects of quality (Sachmängel) and title (Rechtsmängel) of the service - under exclusion of any further claims - exclusively in accordance with the following provisions:
8.2
When providing services, DISTILLERY warrants exclusively for the professional performance of the services, but expressly does not warrant in the event that a service provided by DISTILLERY does not achieve any success or does not achieve the expected success. Certain characteristics shall only be owed if these have been expressly agreed in writing.
8.3
The presumption of defectiveness already at the time of delivery according to sec. 924 of the Austrian Civil Code (ABGB) is excluded by mutual agreement. The burden of proof for the defectiveness is thus on the Customer. DISTILLERY shall not assume any warranty for the delivery of used products.
8.4
DISTILLERY shall in particular not provide any warranty in the following cases: Unsuitable or improper use, faulty commissioning by the Customer or third parties, unusual effects such as increased heat, sunlight, cold, moisture, etc., in accordance with the handling of the created products which is not customary at that time.
8.5
In the event of a defect covered by warranty DISTILLERY shall at its own discretion be entitled to improve or replace the service. DISTILLERY shall furthermore be entitled to choose the place of performance of the warranty obligation. Any Incidental Expenses incurred in remedying the defect shall be borne by the Customer.
8.6
The Customer shall be entitled to withdraw from the contract if DISTILLERY - taking into account the exceptions provided for by law - allows a period of at least 3 (three) weeks, which was set for it to rectify the defect or provide a replacement service, to fruitlessly lapse. If the defect is only minor, the Customer shall only be entitled to a reduction of the remuneration.
8.7
In the event of improvements or replacement of the service, the statutory warranty period shall again only apply to the improved or replaced part of the service.
9. Liability and Compensation for Damages
9.1
DISTILLERY shall not be liable for damages caused with (slight) negligence, with the exception of personal injury. Liability is also excluded for pure financial loss, loss of profit, third party damage, indirect damage and loss of production.
9.2
The reversal of the burden of proof (Beweislastumkehr) of sec. 1298 of the Austrian Civil Code (ABGB) is excluded.
9.3
DISTILLERY's liability shall in all cases be limited to the amount of the order.
9.4
Any claims for damages against DISTILLERY or DISTILLERY employees shall forfeit within six months of DISTILLERY upon knowledge of the damage and the party causing the damage, unless they have been asserted in court by then.
9.5
In the event of any breach of the provisions of these GTC, in particular breach of the obligations to cooperate as set out in clause 6, DISTILLERY shall not be liable for any damages whatsoever.
9.6.
Any liability on the part of DISTILLERY for claims made against the Customer on the basis of the services provided by DISTILLERY shall be expressly excluded if DISTILLERY has complied with its duty to inform the Customer in this respect or if it was not possible for DISTILLERY to recognise such a duty. Slight negligence shall not affect the afore-mentioned.
9.7
If DISTILLERY uses a vicarious agent for the fulfilment of contractual claims, DISTILLERY's liability shall additionally be limited to the amount which DISTILLERY could claim in the framework of a recourse to the vicarious agent.
10. Intellectual Property Rights, Industrial Property Rights and Rights of Use
10.1
The Customer undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without DISTILLERY's prior written consent.
10.2
The copyrights of DISTILLERY as well as of any third parties commissioned by DISTILLERY in accordance with point 16.1, as well as any other licensors, regarding any works created (in particular offers, reports, analyses, expert opinions, programs, videos, service descriptions, drafts, pictures, calculations, drawings, data carriers, research reports, etc.) or parts thereof, shall remain with DISTILLERY or, respectively, its licensors. They may be used by the Customer during and after termination of the contractual relationship exclusively for the purposes covered by the contract and within the agreed scope of use. The rights of use shall only pass to the Customer after the remuneration has been paid in full. The Customer is in particular not entitled to grant third parties rights to the services of DISTILLERY or parts thereof or its licensors, to transfer rights of use to third parties or to grant sublicenses to third parties, or, respectively, to make the services of DISTILLERY or its licensors available to third parties for the purpose of use.
10.3
Changes and modifications to DISTILLERY services, in particular their further development by the Customer or by third parties working for the Customer, shall only be permitted with the express consent of DISTILLERY and - insofar as the services are protected by copyright - with the express consent of the author.
10.4
Under no circumstances shall any (illegal) reproduction/distribution give rise to any liability - of any nature whatsoever - on the part of DISTILLERY, in particular e.g. for correctness and completeness, vis-à-vis third parties.
10.5
If, in the course of contract fulfilment, DISTILLERY is required to procure or provide the Customer with licence rights concerning products of third party manufacturers, these shall be supplied on the basis and under the terms of the licence or, respectively, transfer agreement specified by the third party manufacturer. At the request of the Customer DISTILLERY will present these licence or, respectively, transfer conditions. The Customer acknowledges in full the respective licence or, respectively, transfer conditions of the third party manufacturer - even if the Customer waives the right to inspect them - and shall indemnify and hold DISTILLERY harmless in the event of any breach of contract for which the Customer is responsible. All relevant copyrights and intellectual property rights remain with the respective third party manufacturer. Under no circumstances shall DISTILLERY grant the Customer any rights of use which go beyond those to which it is entitled in the licensed product itself or, respectively, which it is entitled to grant to third parties on the basis of the terms of the licence. The Customer shall in particular be liable for ensuring that the documents which are provided to DISTILLERY for processing do not infringe the rights of third parties, may be used within the scope of the contractually agreed purpose, and do not violate applicable law.
11. Special Terms and Conditions
11.1
The activities of DISTILLERY are roughly divided into four areas of service: (i) consulting and development of strategies in the field of communication, marketing and creative design; (ii) implementation of (marketing) campaigns and strategies in media of various kinds as well as a success analysis (media analysis) (iii) creation of (media) products in the form of images, moving images and text as well as distribution via (digital) communication media (iv) planning, implementation and coordination of events.
11.2
The provisions of these GTC shall apply to all services provided by DISTILLERY, regardless of which area of service is covered. In addition, these Special Terms and Conditions shall apply to the area of services listed under 11.1 above, as structured below:
12. (i) Consulting and Development of Strategies in the field of Communication, Marketing and Creative Design
12.1
This area of service includes, among other things, a planning phase in which the more detailed commercial and temporal modalities or, respectively, specifications for the following areas of service are also determined and the provisions of these GTC are already applicable to the planning phase.
12.2
DISTILLERY shall be entitled to charge the Customer an appropriate fee for expenses incurred during the planning and also business initiation phase, such as, in particular, presentations, rough concepts, location scouting, research, design drafts, etc. (hereinafter referred to in short as "Preliminary Work"), even if no further contractual relationship is established between DISTILLERY and the Customer. In this case, all items created shall also be handed over to DISTILLERY in their entirety. It is not permitted to pass on these items to third parties, nor is it permitted to have them published, reproduced or distributed without DISTILLERY's written consent.
12.3
The linguistic and graphic parts of the Preliminary Work are subject to the protection of the Copyright Act. These ideas are at the beginning of each creative process and can be defined as the spark that ignites everything that is produced later and thus defined as the origin of marketing strategy. The Customer is not permitted to use or edit these parts without DISTILLERY's consent.
13. (Ii) Implementation of (Marketing) Campaigns and Strategies in Media of various kinds
13.1
DISTILLERY expressly points out to the Customer that the providers of "social media channels" such as Facebook, Instagram, etc (hereinafter referred to in short as "Social Media Providers") reserve the right in their terms of use to refuse or remove advertisements and appearances for any reason whatsoever. Social Media Providers are therefore not obliged to pass on contents and information to users. There is therefore a risk, which DISTILLERY cannot calculate and which is also not justifiable, that advertisements and appearances will be removed without reason or also due to complaints by third parties.
14. (iii) Creation of (Media) Products
14.1
This area of service consists of the creation of media or, respectively, digital products. The services offered by DISTILLERY include the areas of print (e.g. press releases, press kits, printed material to advertise a product or events, product catalogues, image catalogues, lookbook); photo (e.g. product photography, brand photography, portrait photography, sports photography); video (e.g. brand video / image video, product advertising, documentation for TV, online, cinema, social media, in-store, at trade fairs); and digital (e.g. creation of websites front end/back end, creation of mobile applications).
14.2
The provisions set forth in point 10. with regard to intellectual property rights, industrial property rights and rights of use shall be applied in full, unless otherwise provided below.
14.3
Insofar as DISTILLERY itself holds copyright and ancillary copyrights (leistungsschutzrechtliche Nutzungsrechte) concerning the products (or parts thereof) created within the meaning of point 14.1, the Customer shall - upon acceptance of the product - only acquire the non-exclusive right to use the products supplied for the agreed purpose of use and to the agreed scope of use. Apart from that, all other rights of use - in particular the right of reproduction - shall remain with DISTILLERY, unless otherwise expressly agreed in writing between the parties to the contract. The right of use granted to the Customer shall in particular not include the right to adapt the purchased products in any way and/or to resell them to third parties.
14.4
Unless otherwise agreed in writing, the acquisition of the non-exclusive rights of use shall - for photo and/or video products as defined in point 14.1 - in particular include the right to make the products available in the sense of a distribution of the production via digital channels without altering its contents (e.g. on the Customer's website or via social media channels) and the right of recitation, performance and presentation in the sense of a broadcasting without altering the contents for the intended purpose, e.g. in cinemas, trade fairs, presentations or in the Customer's business premises.
14.5
The following shall apply to products from the digital area in the sense of point 14.1.: the Customer shall exclusively acquire the right to use the software only for the purpose agreed, if any, and for own purposes, only for the hardware specified in the contract and only to the extent of the number of licenses acquired. The delivery of individual software is always effected as object code. The Customer shall in particular have the right to itself administer and design a user interface created by DISTILLERY. The delivery of the source code requires a separate written agreement. DISTILLERY is expressly permitted to further use the source code, unless otherwise agreed in writing. The Customer shall name DISTILLERY as the author in the imprint of the website or, respectively, of the application.
14.6
Unless otherwise agreed in writing, the rights of use granted shall only extend to the Republic of Austria.
14.7
Should the Customer make illegal use of the product in the sense of point 14.1, it shall be liable to DISTILLERY for twice the amount of the fee which is reasonable for such use.
15. (iv) Planning, Implementation and Coordination of Events
15.1
Insofar as DISTILLERY concludes contracts with third parties for the organisation of an event, such contracts shall be concluded in the name and with the authority of the Customer. This concerns in particular the rental of rooms, the conclusion of contracts in the catering sector as well as the conclusion of contracts with artists, etc.
15.2
Irrespective of the provisions of the above points, the following terms and conditions for down payments apply in the area of service of the organisation of events:
15.3
Concerning private and public events, corporate events, product presentations, press conferences, trade fairs, events and shows, etc. (hereinafter referred to in short as "Events"), DISTILLERY shall be entitled to invoice a down payment of up to 50% of the order value upon acceptance of the order. DISTILLERY shall not commence performance of the service before receipt of the down payment after acceptance of the order. Delays due to late receipt of the down payment shall in any case be borne by the Customer. In addition DISTILLERY shall be entitled at any time to request further amounts on account (down payments) from the Customer.
15.4
Unless otherwise agreed in detail, the following cancellation conditions shall apply:
15.5
In the event of cancellation of an event - for whatever reason - by the Customer, as well as in the event of impossibility of performance of services during the term of the contract, unforeseeable and extraordinary circumstances, such as war, civil unrest, epidemics, natural disasters, destruction of accommodation - in this case by whatever part of the contract
15.5.1
up to 40 (forty) days prior to the start of the event, 20 percent of the order amount;
15.5.2
up to 20 (twenty) days prior to the start of the event, 40 percent of the order amount;
15.5.3
up to 10 (ten) days prior to the start of the event, 80 percent of the order amount;
15.5.4
thereafter 100% of the order amount;
are to be paid to DISTILLERY by the Customer. Should DISTILLERY incur higher costs due to the cancellation of an event, DISTILLERY shall be entitled, notwithstanding this provision, to charge the Customer for the costs actually incurred.
15.6
With regard to outdoor events, the Customer is advised that the event may depend on the weather conditions and that DISTILLERY shall not be liable or guarantee or shall not assert any obligation to provide services in the event of weather-related impossibility.
16 General Conditions of Execution
16.1
If required, DISTILLERY shall be free to have all or part of the activities necessary for the performance of the contract performed by third parties, whereby no direct contractual relationship of any kind whatsoever shall arise between the third party and the Customer in such a case.
16.2
The scope of the services to be provided by DISTILLERY is set out in the Agency Contract or the order confirmation (point 2.3). During the term of the contract, the Customer has the option of adapting, changing or supplementing the scope of the project as necessary in agreement with DISTILLERY (hereinafter referred to in short as "Project Supplement"). Such a Project Supplement must be in writing and the provisions of these GTC shall apply in any case.
16.3
If the Project Supplement requested by the Customer requires a comprehensive examination, in particular whether and under what conditions the Project Supplement is feasible, DISTILLERY shall be entitled to demand a separate instruction for this purpose.
16.4
The Customer has been informed by DISTILLERY that a Project Supplement may lead to higher costs and (time) delays.
17 Legal Status of DISTILLERY
17.1
The Customer shall have no right of supervision or instruction vis-à-vis DISTILLERY or vis-à-vis third parties called upon in accordance with point 16.1 with regard to the direct performance of the contract in terms of organisation and facts. DISTILLERY will not be integrated into the Principal's operational organisation. DISTILLERY and any third parties called upon in accordance with point 16.1 are also free to act for third parties without restriction.
17.2
DISTILLERY shall be entitled to refer to itself or, respectively, to the author in all advertising material and on all items used (point 12.2) without this leading to a separate claim for remuneration by the Customer or to a claim for a reduction in remuneration.
17.3
DISTILLERY shall be entitled, subject to written revocation by the Customer at any time, to make reference to the existing business relationship with the Customer on its own advertising media and in particular on its Internet website with its name and company logo (reference notice).
18 Final Provisions
18.1
All legal relations between DISTILLERY and the Customer shall be governed exclusively by Austrian law with the exception of Austrian international private law.
18.2
The contractual parties agree that the place of jurisdiction for all disputes arising out of or in connection with this contractual relationship shall be the court having jurisdiction ratione materiae over the registered office of DISTILLERY. DISTILLERY shall however also be entitled to bring an action at the Customer's registered office.
18.3
The place of performance for the obligations arising from the contractual relationship shall be DISTILLERY's registered office.
18.4
The Customer may not transfer or assign the contractual relationship to third parties without DISTILLERY's written consent. DISTILLERY shall be entitled to such assignment to third parties without the prior consent of the Customer
18.5
Unless expressly agreed otherwise, the sending of an e-mail shall be sufficient to meet the requirement of the written form.
18.6
The Customer acknowledges that DISTILLERY will also send the Customer information relevant to the contract by e-mail. The Customer shall therefore be obliged to notify DISTILLERY immediately of any changes in its contact information, in particular its contact e-mail address. DISTILLERY shall not be liable for any damages or disadvantages resulting from the Customer's breach of this duty of information towards DISTILLERY.
18.7
Should any provision of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision which comes closest to the meaning and purpose of the invalid provision.
18.8
The Customer may not withhold any payments. The Customer may only set off claims against claims of DISTILLERY if the claims have been recognised or established by a court.
18.9
In the event of contradictions in the basis of the contract the following order shall apply: (i) confirmation of order, (ii) any Agency Contract concluded, if any (iii) these GTC.
18.10
Amendments or supplements to the Agency Contract as well as provisions of these GTC must be made in writing. This also applies to any departure from the written form requirement.
18.11
Only the German version of these GTC is authoritative.
as of July 2020