Terms of Service

1. Scope & Conclusion of Contract

These Terms of Service (“Terms”) apply to all legal relationships between Thomas Mirnig (hereinafter referred to as the “Contractor”) and his clients (hereinafter referred to as the “Client”).

These Terms apply exclusively to entrepreneurs within the meaning of the Austrian Commercial Code (UGB). Consumers are not served.

The version of the Terms valid at the time of conclusion of the contract shall apply. Deviating or supplementary agreements shall only be effective if confirmed in writing by the Contractor.

Any conflicting or deviating terms and conditions of the Client shall not be recognized, even if not expressly rejected.

Offers made by the Contractor are subject to change and non-binding.

Third-party platforms (e.g. contra.com):
If services are offered, commissioned or processed via third-party platforms (in particular contra.com), the respective terms of use and payment conditions of such third-party platforms shall apply in addition. These Terms govern the contractual relationship between the Contractor and the Client insofar as no mandatory provisions of the third-party platform prevail.

Amendments to these Terms shall be communicated to the Client and shall be deemed agreed if the Client does not object in writing within 14 days of receipt. The Contractor shall expressly inform the Client of the significance of silence and of the amended provisions. This fiction of consent shall not apply to changes of material service obligations or remuneration.

2. Scope of Services

The specific scope of services results from:

• the individual offer,

• an order confirmation,

• and any supplementary written agreements (“Contractual Documents”).

The Contractor provides services in particular in the areas of:

• Product Design (e.g. iOS apps, web apps),

• UI/UX design,

• prototyping,

• web design and website creation (e.g. using Framer),

• as well as related consulting services.

The Contractor does not owe a specific economic success, but rather the professional performance of the agreed services.

3. Project Execution & Client Cooperation Obligations

The Client undertakes to provide all information, content and materials required for the performance of the services completely, accurately and in due time.

Delays or additional expenses arising from incomplete, delayed or subsequently modified information shall be borne by the Client.

Within the agreed framework, the Contractor retains creative and methodological freedom.

3a. Third-Party Rights / Materials Provided by the Client

The Client warrants that all content, materials and documents provided by the Client (in particular texts, images, graphics, logos, fonts, videos, software, trademarks, design templates or other works) are free of third-party rights or that the Client holds the required rights of use and exploitation.

The Client is solely responsible for the required rights clearance.

The Contractor is not obliged to examine materials provided by the Client with regard to their legal admissibility or the existence of third-party rights.

If the Contractor is claimed against by third parties due to the use of such materials provided by the Client, the Client undertakes to fully indemnify and hold the Contractor harmless. This includes, in particular, claims for damages, administrative fines, reasonable legal defense costs and any other disadvantages.

4. Acceptance & Feedback

Drafts, concepts, designs and other work results must be reviewed by the Client without undue delay, but no later than within three business days after being made available.

If no feedback is provided within this period, the services shall be deemed approved.

Corrections and feedback must be provided specifically and in a consolidated manner. Subsequent change requests may be charged as additional services.

5. Third-Party Services & Providers

The Contractor is entitled to engage third parties as vicarious agents or to outsource services in whole or in part.

The Contractor shall not be liable for services provided by third parties (e.g. hosting, software, platforms) unless such services are expressly part of the Contractor’s own scope of services.

6. Deadlines & Delay

Delivery and performance deadlines are non-binding unless expressly agreed in writing as binding.

In the event of force majeure or other circumstances beyond the Contractor’s control, deadlines shall be reasonably extended.

Withdrawal due to delay shall only be permissible after granting a written grace period of at least 14 days. Claims for damages due to non-performance or delay are excluded unless intent or gross negligence is proven.

If such delays last longer than two months, both parties shall be entitled to withdraw from the contract.

7. Fees & Payment Terms

Unless otherwise agreed, the Contractor’s fee claim arises upon performance of the respective service.
All prices are net prices plus statutory value-added tax.
The Contractor is entitled to request advance payments, partial invoices or down payments.
Invoices are payable immediately upon receipt without deduction.

Cost estimates:
Cost estimates are non-binding unless expressly agreed in writing as binding. If it becomes apparent that the actual costs will exceed the written estimate by more than 15%, the Contractor shall inform the Client. The cost overrun shall be deemed approved if the Client does not object in writing within three business days of notification and simultaneously proposes more cost-effective alternatives. Cost overruns of up to 15% shall be deemed approved in advance.

8. Late Payment

In the event of late payment, statutory default interest applicable to entrepreneur transactions shall apply.

The Contractor is entitled to:

• withhold services until full payment has been received,

• declare all outstanding claims immediately due,

• assert reminder and collection costs.

Set-off by the Client shall only be permitted with undisputed or legally established claims.

The Client shall reimburse the Contractor for all reminder and collection costs necessary for appropriate legal enforcement, including reasonable attorney intervention costs.

In the event of default, the Contractor is entitled to declare all services and partial services rendered under other contractual relationships with the Client immediately due.

9. Early Termination / Cancellation by the Client (Intermediate Model)

Termination for good cause:
Both parties are entitled to terminate the contract for good cause. Good cause exists in particular if a party materially breaches contractual obligations (e.g. payment, cooperation, serious breaches of duty) despite written warning and an appropriate grace period.

Termination / cancellation without good cause by the Client:
If the Client terminates the contract without good cause or aborts the project, the Client shall in any case pay or reimburse:

1. all services rendered up to the time of termination (based on the agreed hourly rate / flat fee),

2. all demonstrably incurred and/or already committed costs (e.g. third-party services, tools, licenses, non-cancellable bookings), and

3. a cancellation fee of 20% of the remaining, not yet invoiced fee portion.

The Client may prove that no or a significantly lower loss has occurred.

10. Copyright & Rights of Use

All services created by the Contractor remain the intellectual property of the Contractor until full payment has been made. Upon full payment, the Client receives a simple, non-transferable right of use for the contractually agreed purpose. Any further use, modification or transfer requires the prior written consent of the Contractor. The delivery of editable or open files (e.g. Figma, Framer or other design files) is not owed unless expressly agreed.

11. Reference Use

The Contractor is entitled to name the Client and the project as a reference (website, portfolio, social media), unless the Client objects in writing.

12. Warranty

The Client must notify any defects without undue delay, but no later than within eight days after delivery or performance of the service, in writing and describing the defect. Hidden defects must be asserted within eight days of discovery.

If the Client fails to give timely notice of defects, the service shall be deemed approved. In this case, warranty and damage claims as well as claims for rescission due to error are excluded.

In the event of a justified and timely notice of defects, the Client shall be entitled, at the Contractor’s discretion, to improvement or replacement of the defective service. The Contractor is entitled to refuse improvement if it is impossible or involves disproportionate effort. In this case, the Client shall be entitled to statutory rights of price reduction or rescission.

The Client shall provide the Contractor with all information and documents necessary for defect inspection and remedy and shall enable defect remediation to a reasonable extent.

The Client is responsible for reviewing the Contractor’s services for their legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. The Contractor is only obliged to perform a general plausibility check. Liability for legal admissibility of content provided or approved by the Client is excluded unless intent or gross negligence is attributable to the Contractor.

The warranty period is six months from delivery or performance. The right of recourse pursuant to § 933b ABGB shall expire one year after performance, insofar as legally permissible.

The reversal of the burden of proof pursuant to § 924 ABGB is excluded.
The Client is not entitled to withhold payments due to alleged defects.

13. Liability

The Contractor shall be liable to the Client for damages only in cases of intent or gross negligence.
Liability for slight negligence is excluded to the extent permitted by law.

This exclusion of liability applies to property and financial damages as well as to direct and indirect damages, in particular:

• loss of profit,

• consequential damages,

• consequential defect damages,

• damages due to delay,

• damages due to impossibility of performance,

• damages due to positive breach of contract,

• and damages due to fault in contract conclusion.

The burden of proof for gross negligence lies with the Client.

Insofar as the Contractor’s liability is excluded or limited, this shall also apply to the personal liability of its employees, freelancers, contractors and other vicarious agents.

The Contractor’s liability is limited in amount to the net contract value of the respective contractual relationship.

The Contractor shall not be liable for third-party claims asserted against the Client based on the Contractor’s services if the Contractor has complied with its duty to warn or if such a duty was not recognizable. This applies in particular to claims arising from:

• competition, trademark, copyright or designation law violations,

• official requirements or inadmissibility of content,

• or other legal objections.

The Contractor shall in particular not be liable for:

• court costs,

• the Client’s own legal fees,

• costs of judgment publications,

• claims for damages or other third-party claims.

In such cases, the Client undertakes to fully indemnify and hold the Contractor harmless, unless the claim is based on intent or gross negligence of the Contractor.

Claims for damages shall lapse unless asserted in court within six months from knowledge of the damage and the injuring party, and in any case within three years from the damaging event.

14. Data Protection

Personal data shall be processed in accordance with applicable data protection laws. Further details are set out in the Privacy Policy.

15. Governing Law & Jurisdiction

Austrian substantive law shall apply, excluding its conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

Place of performance is the Contractor’s registered office.

Jurisdiction for all disputes arising out of or in connection with this contractual relationship shall be the court having subject-matter jurisdiction at the Contractor’s registered office.

Notwithstanding the foregoing, the Contractor is entitled to sue the Client at the Client’s general place of jurisdiction.

16. Final Provisions

Should individual provisions of these Terms be or become invalid, the validity of the remaining provisions shall remain unaffected. Where personal designations are used only in the masculine form, they shall apply equally to all genders.

17. Language Clause

These Terms were originally drafted in the German language. The German version constitutes the original and legally binding version of these Terms. An English version is provided for convenience and informational purposes only. In the event of any discrepancies or inconsistencies, the German version shall prevail.

Contact

Thomas from Ultimate.digital
hello[at]thomasmirnig.com