Terms and Conditions
TERMS OF SERVICE
1. Validity, conclusion of contract
1.1 offroad communications (hereinafter referred to as “agency”) provides its services exclusively on the basis of the following general terms and conditions (GTC). These apply to all legal relationships between the agency and the customer, even if they are not expressly referred to. The terms and conditions are only applicable to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time of the conclusion of the contract is decisive. Deviations from these and other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.
1.3 Any terms and conditions of the customer, even if they are known, are not accepted, unless otherwise expressly agreed in writing in individual cases. The agency expressly rejects the customer’s terms and conditions. A further contradiction to the customer’s terms and conditions by the agency is not required.
1.4 Changes to the General Terms and Conditions will be announced to the customer and shall be deemed to have been agreed if the customer does not object to the changed General Terms and Conditions in writing within 14 days; The customer is expressly informed of the importance of silence in the notification.
1.5 Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to the meaning and purpose.
1.6 The agency’s offers are subject to change and non-binding.
2. Social media channels
3. Concept and idea protection
If the potential customer has already invited the agency in advance to create a concept and the agency complies with this invitation before the main contract is concluded, the following rule applies:
3.1 With the invitation and the acceptance of the invitation by the agency, the potential customer and the agency enter into a contractual relationship (“pitching contract”). This contract is also based on the terms and conditions.
3.2 The potential customer acknowledges that the agency is already providing cost-intensive preliminary work with the concept development, although it has not yet assumed any performance obligations.
3.3 The concept, in its linguistic and graphic parts, is subject to the protection of copyright law, as far as it reaches this level. A use and processing of these parts without the consent of the agency is not permitted to the potential customer due to the copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the height of the work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as a spark of everything that comes up later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising material, etc. are regarded as ideas within the meaning of this agreement, even if they are not as high as possible.
3.5 The potential customer undertakes to refrain from using these creative advertising ideas presented by the agency as part of the concept outside of the corrective of a main contract to be concluded later economically or to have them used or to use or have used.
3.6 If the potential customer is of the opinion that the agency has presented ideas that he had already come up with before the presentation, he must inform the agency in writing (by e-mail, fax) within 14 days of the day of the presentation or letter) citing evidence that allows a time allocation to be announced.
3.7 In the opposite case, the contracting parties assume that the agency has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the agency was meritorious.
3.8 The potential customer can exempt himself from his obligations under this point by paying appropriate compensation plus 20% sales tax. The exemption does not apply until the agency has received full payment of the compensation.
4. Scope of services, order processing and the customer’s obligation to cooperate
4.1 The scope of the services to be provided results from the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol (“offer documents”). Subsequent changes to the service content require written confirmation by the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
4.2 All services of the agency (in particular all preliminary drafts, sketches, final drawings, brush prints, blueprints, copies, color prints and electronic files) are to be checked by the customer and approved by him within three working days of receipt by the customer. After this period has elapsed without feedback from the customer, they are deemed to have been approved by the customer.
4.3 The customer will make all information and documents available to the agency in a timely and complete manner that are necessary for the provision of the service. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expense that arises from the fact that work has to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information.
4.4 The customer is also obliged to check the documents (photos, logos, etc.) made available by him for the execution of the order for any copyrights, trademarks, trademarks or other rights of third parties (rights clearing) and guarantees that the documents are free from the rights of third parties and can therefore be used for the intended purpose. The agency is liable in the case of simple negligence or after fulfilling its warning obligation – at least in the internal relationship with the customer – not due to a violation of such third party rights through the documents provided. If the agency is called upon by a third party due to such a violation of the law, the customer shall hold the agency harmless and harmless; he has to reimburse her for all disadvantages that she incurs as a result of third-party claims, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties. For this purpose, the customer provides the agency with all documents without being requested to do so.
5. External services / commissioning third parties
5.1 The agency is entitled, at its own discretion, to perform the service itself, to use competent third parties as vicarious agents for the provision of contractual services and / or to substitute such services (“external service”).
5.2 The commissioning of third parties in the context of an external service takes place either in the customer’s own name or in the name of the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 Insofar as the agency commissions necessary or agreed third-party services, the respective contractors are not agents of the agency.
5.4 The customer has to enter into obligations of the agency towards third parties that go beyond the term of the contract. This also applies expressly in the event that the agency contract is terminated for an important reason.
6.1 Unless expressly agreed as binding, the specified delivery or service deadlines are only approximate and non-binding. Binding appointments must be made in writing or confirmed in writing by the agency.
6.2 If the delivery / service of the agency is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be prevented by reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and are extended Deadlines accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
6.3 If the agency is in default, the customer can only withdraw from the contract after giving the agency a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of evidence of intent or gross negligence.
7. Early termination
7.1 The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
- a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;
- b) the customer continues to violate essential obligations from this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
- c) there are legitimate concerns about the creditworthiness of the customer and the customer neither makes advance payments at the request of the agency nor provides a suitable security prior to the agency’s performance;
7.2 The customer is entitled to dissolve the contract for important reasons without setting a grace period. An important reason exists in particular if the agency continues to violate essential provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
8.1 Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been performed. The agency is entitled to request advances to cover its expenses. From an order volume with an (annual) budget of € 10,000, or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to call up payments on account.
8.2 The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee at the market rate for the services provided and the transfer of the rights of use under copyright and trademark law.
8.3 All agency services that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency are to be reimbursed by the customer.
8.4 Cost estimates by the agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the agency by more than 15%, the agency will inform the customer of the higher costs. The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time provides more cost-effective alternatives. If the costs are exceeded by up to 15%, separate notification is not required. This overrun of the cost estimate is deemed to have been approved by the client from the outset.
8.5 If the customer unilaterally changes or cancels work commissioned without the agency’s involvement – without prejudice to other ongoing support provided by the agency – he must reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not justified by a grossly negligent or willful breach of duty on the part of the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the crediting fee of § 1168 AGBG is excluded. Furthermore, the agency is to be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of the agency. By paying the fee, the customer does not acquire any rights of use for work that has already been performed; Concepts, drafts and other documents that have not been carried out are to be returned to the agency immediately.
9. Payment, retention of title
9.1 The fee is due for payment immediately upon receipt of the invoice and without any deductions, unless special terms of payment have been agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all ancillary liabilities.
9.2 In the event of default in payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the reminder and collection costs incurred, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the customary market amount of currently at least € 20.00 per reminder as well as one reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of default in payment by the customer, the agency can immediately make all services and partial services due within the framework of other contracts concluded with the customer.
9.4 Furthermore, the agency is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay remuneration remains unaffected.
9.5 If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
9.6 The customer is not entitled to offset his own claims against claims of the agency, unless the customer’s claim has been recognized by the agency in writing or has been determined by a court.
10. Ownership and Copyright
10.1 All services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and draft originals, remain the property of the agency and can be reclaimed by the agency at any time – especially when the contractual relationship is terminated. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the agency’s services in Austria. The acquisition of usage and exploitation rights to the agency’s services always requires full payment of the fees charged by the agency. If the customer uses the agency’s services before this point in time, this use is based on a loan relationship that can be revoked at any time.
10.2 Changes or processing of the agency’s services, in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and – insofar as the services are protected by copyright – the author.
10.3 For the use of the agency’s services that go beyond the originally agreed purpose and scope of use – regardless of whether this service is protected by copyright – the agency’s consent is required. The agency and the author are entitled to separate appropriate remuneration for this.
10.4 For the use of the agency’s services or advertising material for which the agency has developed conceptual or creative templates, the agency’s consent is also required after the agency contract has expired, regardless of whether this service is protected by copyright or not.
10.5 For uses in accordance with 10.4, the agency is at 1st year after the end of the contract, you are entitled to the full agency fee agreed in the expired contract. in the 2. or 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the In the 4th year after the end of the contract, no agency fees are payable.
10.6 The customer undertakes to pay the agency a contractual penalty in double the amount of the appropriate fee for this use for each unlawful use.
11.1 The agency is entitled to refer to the agency and, if necessary, to the author on all advertising material and in all advertising measures, without the customer being entitled to any remuneration.
11.2 Subject to the customer’s written revocation, which is possible at any time, the agency is entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).
12.1 The customer must report any defects immediately, in any case within eight days after delivery / service by the agency, hidden defects within eight days after detection of the same, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and damage claims as well as the right to avoid errors due to defects are excluded.
12.2 In the case of justified and timely notification of defects, the customer has the right to improve or exchange the delivery / service by the agency. The agency will remedy the deficiencies within a reasonable period of time, whereby the customer enables the agency to take all measures necessary to investigate and remedy the deficiencies. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the case of improvement, it is the responsibility of the client to transfer the defective (physical) item at his own expense.
12.3 It is also the responsibility of the client to check the performance for its legal, in particular competition, trademark, copyright and administrative permissibility. The agency is only obliged to carry out a rough check of the legal admissibility. In the event of slight negligence or after fulfilling a possible warning obligation towards the customer, the agency is not liable for the legal admissibility of content if this has been specified or approved by the customer.
12.4 The warranty period is six months from delivery / service. The right to recourse against the agency in accordance with Section 933b (1) ABGB expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of § 924 ABGB is excluded.
13. Liability and Product Liability
13.1 In cases of slight negligence, liability of the agency and that of its employees, contractors or other vicarious agents (“people”) for property damage or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, lost profit or consequential damage due to defects Delay, impossibility, positive breach of contract, negligence when concluding the contract, due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. Insofar as the agency’s liability is excluded or limited, this also applies to the personal liability of its “people”.
13.2 Any liability on the part of the agency for claims made by third parties against the customer on the basis of the services provided by the agency (e.g. advertising measures) is expressly excluded if the agency has complied with its obligation to notify or it was not recognizable, whereby slight negligence does not harm. In particular, the agency is not liable for legal costs, the customer’s own legal costs or the costs of the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer has to indemnify and hold harmless the agency in this regard.
13.3 Claims for damages by the customer expire six months after knowledge of the damage; at least after three years from the agency’s act of infringement. Claims for damages are limited in amount to the net order value.
14. Data protection
The customer agrees that his personal data, namely name / company, occupation, date of birth, commercial register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card data, UID number) for the purpose of fulfilling the contract and supporting the customer as well as for our own advertising purposes, e.g. for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of indicating the existing or previous business relationship with the customer (reference information), stored and processed.
The client consents to electronic mail being sent to him for advertising purposes until further notice.
This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details given in the head of the General Terms and Conditions.
15. Applicable Law
The contract and all mutual rights and obligations derived from it as well as claims between the agency and the customer are subject to Austrian substantive law, excluding its reference norms and excluding the UN sales law.
16. Place of performance and jurisdiction
16.1 The place of performance is the seat of the agency. In the case of dispatch, the risk is transferred to the customer as soon as the agency has handed over the goods to the transport company chosen by it.
16.2 The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is agreed to be the competent court for the agency’s headquarters. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction.
16.3 Insofar as designations relating to natural persons are only given in masculine form in this contract, they refer to women and men in the same way. When applying the designation to certain natural persons, the gender-specific form must be used.
By placing the order, the client confirms that he has taken note of the general terms and conditions of offroad communications and that he has declared them to be applicable. This contract is subject to Austrian law. The exclusive place of jurisdiction for all disputes between the contractual partners is Vienna.
GENERAL TERMS AND CONDITIONS
1. Applicability; Conclusion of contract
1.1 offroad communications (hereinafter “Agency”) shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between the Agency and the Customer, even if they are not expressly referred to. The GTC shall exclusively apply to legal transactions with entrepreneurs, ie B2B transactions.
1.2 The version applicable at the time of conclusion of a contract shall be relevant. Deviations from these GTC and other supplementary agreements with the customer shall only be effective if they have been confirmed by the Agency in writing.
1.3 Terms and conditions of the customer, if any, shall not be accepted, even if the Agency knows them, unless expressly agreed otherwise in writing on a case-by-case basis. The Agency expressly objects to GTC of the Customer. No other objection from the Agency to the Customer’s GTC shall be required.
1.4 The Customer shall be informed about amendments to the GTC; they shall be deemed agreed unless the Customer objects to the amended GTC in writing within 14 days; in the information the customer will be expressly informed about the consequence of silence on his part.
1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded on the basis of the same shall not be affected. The ineffective provision shall be replaced by an effective provision which comes as close as possible to the meaning and purpose of the ineffective one.
1.6 The Agency’s offers shall be subject to change without notice and non-binding.
2. Social media channels
Before an order is placed the Agency expressly points out to the Customer that providers of “social media channels” (eg facebook; hereinafter referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotional appearances for any reason whatsoever. Accordingly, providers are not obliged to forward content or information to users. Thus, there is a risk, which cannot be calculated by the Agency, that advertisements or promotional appearances are removed for no reason. Although in the case of a complaint of a different user providers do offer an opportunity to reply, the content will be immediately removed also in that case. In that case restoring the original, lawful condition may take some time. The Agency works on the basis of the Providers’ terms and conditions of use, on which it has no influence, and also makes them the basis of customer orders. By placing the order the Customer expressly acknowledges that those terms and conditions of use (co-) determine the rights and duties of a contractual relationship, if any. The Agency intends to execute the customer’s order to the best of its knowledge and belief and to comply with the policies of “social media channels”. Due to the terms and conditions of use that are currently applicable and the fact that every user can easily allege a violation of the law with the aim that contents will be removed, the Agency cannot guarantee that the ordered campaign can be retrieved at any time.
3. Protection of Concepts and Ideas
If a potential Customer has already invited the Agency beforehand to develop a concept and if the Agency accepts this invitation prior to the conclusion of the principal contract, the following shall apply:
3.1 By the invitation and acceptance of the invitation by the Agency, the potential Customer and the Agency enter into a contractual relationship (“pitching contract”). That contract will also be based on the GTC.
3.2 The potential Customer acknowledges that already by developing a concept the Agency will render cost-intensive services, even though the Customer himself has not taken on any performance duties yet.
3.3 To the extent that they reach the level of originality required for copyright protection, the linguistic and graphic parts of the concept are protected by the Austrian Copyright Act. The potential customer is not permitted to use or edit those parts without the Agency’s consent due to the Austrian Copyright Act alone.
3.4 Furthermore, the concept contains ideas that are relevant to advertising which do not reach the level of originality required for copyright protection and are thus not protected by the Austrian Copyright Act. Such ideas are generated at the beginning of every creative process and may be defined as the creative spark for all subsequent work results and, thus, as the origin of the marketing strategy. Accordingly, those elements of the concept are protected which are unique and characterize the marketing strategy. For the purpose of this agreement ideas shall in particular mean advertising slogans, advertising texts, graphics and illustrations, advertising means etc., even if they do not reach the level of originality required for copyright protection.
3.5 The potential customer undertakes not to exploit or have exploited commercially and / or use or have used the creative advertising ideas which the Agency presented as part of the concept in any context other than the corrective of a principal contract to be concluded at a later time .
3.6 If the potential customer is of the opinion that the Agency presented ideas to him which he already had before the presentation, he shall notify the Agency thereof via e-mail within 14 days of the day of the presentation and include means of evidence which allow a chronological allocation.
3.7 Otherwise the parties will assume that the agency has presented an idea to the potential customer which is new to him. If the customer uses the idea, it has to be assumed that the Agency received remuneration therefor.
3.8 The potential customer may be released from his duties under this clause if he pays a reasonable compensation plus 20% VAT. Such release shall become effective only after receipt of the full compensation payment by the Agency.
4. Scope of services; Order processing; Customer’s duties to co-operate
4.1 The scope of the services to be rendered shall be based on the specifications of the Agency Agreement or the Agency’s acknowledgment of order, if any, and the briefing report, if any (“Offer Documents”). Subsequent modifications of the services shall be subject to the Agency’s written confirmation. When executing the order the Agency shall be free in its discretion within the framework specified by the customer.
4.2 All services of the Agency (including but not limited to all preliminary designs, sketches, final drawings, proofs, blueprints, copies, colored prints and electronic files) shall be checked by the customer and released within three working days of receipt by the customer . If they are not released within that period, they shall be deemed approved by the customer. After that period has expired with no reply from the customer they shall be deemed accepted by the same.
4.3 The Customer shall make accessible to the Agency completely and in time all information and documents required for rendering the service. The customer shall notify the Agency of all circumstances that are relevant to the execution of the order, even if they become known only in the course of execution of the order. The customer shall bear the costs incurred due to the fact that work has to be done again by the Agency or is delayed because of his incorrect, incomplete or subsequently modified specifications.
4.4 In addition, the Customer is obliged to clear the documents made available by him for execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks or other rights of third parties (rights clearance) and guarantees that The documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the customer, the Agency shall not be liable (at least as regards the relationship between the Agency and the Customer) for an infringement of such rights of third parties by documents made available by the customer. If the Agency is held liable for an infringement of such rights, the Customer shall indemnify and hold harmless the Agency and shall compensate the Agency for any and all disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The customer undertakes to support the Agency in defending claims of third parties, if any. For this purpose the Customer shall provide the Agency with all documents without request.
5. External services; Commissioning of third parties
5.1 The Agency shall be entitled at its own discretion to render the services itself, to employ expert third parties as agents [ fulfillment assistants as defined by Section 1313a of the Austrian General Civil Code [ ABGB ]] and / or to commission a third party to render such services (“External Service”).
5.2 Commissioning of third parties in connection with an External Service shall be done either in the Agency’s own name or in the name of the Customer. The Agency shall select the relevant third party with care and ensure that it is appropriately qualified.
5.3 If the Agency commissions necessary or agreed external services, the relevant contractors shall not be considered agents of the Agency.
5.4 The customer shall assume obligations vis-à-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the agency contract for cause.
6.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.
6.2 If the delivery / service of the Agency is delayed for reasons for which the Agency is not responsible, such as, eg events of force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays continue for more than two months, the customer and the agency shall be entitled to rescind the contract.
6.3 If the Agency is in default, the Customer may only rescind the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. Claims of the customer for damages on the ground of non-performance or default shall be excluded, unless intent or gross negligence can be proved.
7. Early termination
7.1 The Agency shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where
(a) provision of a service becomes impossible for reasons for which the customer is responsible or is further delayed even though the customer was granted a grace period of 14 days;
(b) the Customer continues to violate material obligations under this contract, such as, eg the obligation to pay an amount payment of which has been demanded or duties to co-operate, despite a written warning and having been granted a grace period of 14 days.
(c) legitimate concerns exist regarding the customer’s credit standing and, upon the Agency’s request, the customer fails to make advance payments or to furnish suitable security prior to provision of the service by the Agency;
7.2 The customer shall be entitled to terminate the contract for cause without having to grant a grace period. A cause shall be, in particular, where the Agency repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.
8.1 Unless otherwise agreed the Agency’s entitlement to fees shall arise for any specific service once the same has been rendered. The Agency shall be entitled to ask for advances to cover its expenses. From a contract volume involving a (an annual) budget of EUR ……………… or contracts extending over a prolonged period of time, the Agency shall be entitled to render interim accounts or issue advance invoices or demand payments on account.
8.2 The fees shall be stated as net fees plus statutory value added tax. If in a specific case no agreement on fees has been concluded, the Agency shall be entitled to fees at market rates for the services rendered and for transfer of copyrights and marks.
8.3 All services of the Agency which are not expressly covered by the agreed fees shall be paid for separately. All cash expenses incurred by the Agency shall be reimbursed by the Customer.
8.4 Cost estimates provided by the Agency shall be non-binding. If it becomes clear that the actual costs will exceed the Agency’s written cost estimate by more than 15 per cent, the Agency shall advise the customer of such higher costs. The increase in costs shall be deemed accepted by the customer if the customer does not object to such increase in writing within three working days of the advice and states cheaper alternatives at the same time. Cost increases of up to 15 per cent shall not have to be advised separately. Such a deviation from the cost estimate shall be deemed accepted by the customer from the beginning.
8.5 If the Customer unilaterally modifies or cancels work ordered without involving the Agency and notwithstanding other regular support from the same, the Customer shall pay the Agency for the services provided by then according to the agreement on fees and shall reimburse all costs incurred. Unless work is canceled on the ground of a breach of the Agency’s duties by gross negligence or willful intent, the Customer shall, in addition, pay the Agency the total fee (commission) agreed for that contract, and the allowance [Anrechnungsvergütung] as defined in Section 1168 of the Austrian Civil Code [ABGB] shall be excluded. Furthermore, the Agency shall be indemnified and held harmless from and against any third-party claims, in particular of the Agency’s contractors. By payment of the fees the customer shall acquire no rights to use work already carried out; concepts, drafts and other documents which were not implemented shall rather be returned to the Agency without delay.
9. Payment; Retention of title
9.1 The fee shall be due for payment immediately upon receipt of the invoice without any deductions, unless special payment terms are agreed in writing on a case-by-case basis. The same shall apply to all cash and other expenses charged. The Agency shall retain title to the goods delivered by it until full payment of the fee including all ancillary liabilities.
9.2 In the case of payment default of the customer statutory default interest at the rate applicable to business-to-business transactions will be charged. In the case of default the customer also undertakes to reimburse the Agency the dunning and collection charges incurred to the extent they are necessary for appropriate pursuit of the claim. This shall in any case include the costs of two dunning letters at the market fee of currently at least EUR 20 per letter plus those of one dunning letter of a lawyer who has been instructed to collect the receivables outstanding. Assertion of further rights and claims shall remain unaffected.
9.3 If the customer is in default of payment, the agency may call for immediate payment of services or partial services rendered under different contracts concluded with the customer.
9.4 Furthermore, the Agency is not obliged to render other services until payment of the amount outstanding (right to withhold services). The obligation to pay the fees shall not be affected.
9.5 If payment by installations has been agreed, the Agency reserves the right to demand immediate payment of the total debt outstanding if installations or ancillary claims are not paid in time (acceleration clause).
9.6 The Customer shall not be entitled to set off claims of the Agency against his own claims unless the Customer’s claim has been recognized by the Agency in writing or ascertained by the court.
10. Title and copyright
10.1 The Agency shall retain title to all services of the Agency, including services in connection with presentations (eg, suggestions, ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides), including parts thereof, as well as the individual workpieces and original designs and the agency may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees the customer shall acquire the right to use the services for the designated purpose agreed. Unless otherwise agreed the customer shall, however, use the agency’s services exclusively in Austria. Acquisition of rights to use and exploit the Agency’s services shall in any case be subject to full payment of the fees charged by the Agency for the same. If the customer uses the Agency’s services already prior to that time, such use shall be based on a loan relationship that may be revoked at any time.
10.2 Modifications and / or editing of services of the Agency, including but not limited to further development of the same by the Customer or third parties working for the Customer, shall only be permitted with the express consent of the Agency and, to the extent that services are protected by copyright, of the author.
10.3 Use of the Agency’s services beyond the originally agreed purpose and scope of use shall be subject to the Agency’s consent irrespective of whether such service is protected by copyright or not. In consideration thereof the Agency and the author shall be entitled to a separate reasonable fee.
10.4 After expiration of the Agency Agreement use of services of the Agency and / or advertising means for which the Agency developed concepts or designs shall also be subject to the Agency’s consent irrespective of whether the service is protected by copyright or not.
10.5 In the first year after termination of the contract the Agency shall be entitled to the full agency fees agreed in the expired contract for any use described in paragraph 4. In the second and third year after expiration of the contract the Agency shall only be entitled to half or one fourth of the consideration agreed in the contract. From the fourth year after termination of the contract no agency fees shall be payable.
10.6 The customer shall be liable to the Agency for any unlawful use in the amount of twice the reasonable fees for such use.
11. Identification marks
11.1 The Agency shall be entitled to make reference to the Agency and the author, if applicable, on all advertising means and in any advertising and promotion measures, without the Customer being entitled to any payment in this respect.
11.2 The Agency shall be entitled to make reference to its current or former business relationship with the Customer on its own advertising media, including but not limited to its website, by referring to the Customer’s business name and business logo, with the Customer having the right to revoke his consent in writing at any time.
12.1 The Customer shall notify any defects immediately and in any case within eight days of delivery / provision of the service by the Agency and hidden defects not later than eight days after they were identified in writing including a description of the defect; otherwise the service shall be deemed accepted. In that case assertion of any warranty claims or claims for damages as well as the right to assert claims on account of mistake shall be excluded.
12.2 In the case of a justified and timely notification of defects the customer shall be entitled to improvement or replacement of the delivery / service by the Agency. The Agency shall repair the defects within a reasonable period of time and the Customer shall enable the Agency to take all measures which are necessary for examination and repair of the defects. The Agency shall be entitled to refuse improvement of the service if such improvement is impossible or if the Agency were to incur disproportionately high costs. In that case the customer shall be entitled to cancel the contract or get a fee reduction as provided for by law. In the case of improvement the customer shall send the defective (physical) item at his cost.
12.3 The Customer shall also be obliged to examine the service for its lawfulness, including but not limited to competition law, trademark law, copyright law and administrative law. The Agency is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the customer, if any, the Agency shall not be liable for lawfulness of contents if they were advised or accepted by the customer.
12.4 The warranty period shall be six months as of delivery / service. The right of recourse to the Agency as defined in Section 933 b (1) ABGB shall be forfeited one year after delivery / service. The customer shall not be entitled to withhold payments on the ground of complaints. The presumption rule of Section 924 ABGB shall be excluded.
13. Liability and product liability
13.1 In cases of slight negligence liability of the Agency and its employees, contractors or other agents [translator’s note: Vicarious agents as defined by Section 1313a ABGB ] (“People”) for damage to property or pecuniary loss suffered by the Customer shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that the agency’s liability is excluded or limited this shall also apply to personal liability of its people.
13.2 Any liability of the Agency for claims asserted vis-à-vis the Customer on the ground of services rendered by the Agency (eg advertising and promotion measures) shall be expressly excluded, provided that the Agency complied with its duty to inform or if it was unable to see such a duty, even due to slight negligence. The Agency shall, in particular, not be liable for costs of legal proceedings, lawyer’s fees of the customer or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Customer shall indemnify and hold harmless the Agency in this respect.
13.3 Claims of the customer for damages shall be forfeited six months after knowledge of the damage and in any case three years after the Agency’s infringement. Claims for damages shall be limited to the net contract value.
14. Data protection (visual emphasis according to court rulings)
The Customer agrees that his personal data, namely name, occupation, date of birth, Business Register Number, powers to represent the company, contact person, business address and other addresses of the Customer, phone number, fax number, e-mail address, bank details, credit card details, VAT number) may be collected, stored and processed electronically for the purpose of performance of the contract and support of the customer and for the Agency’s own advertising and promotion purposes, for example by sending him offers, advertising brochures or newsletters (in hard copy or electronic form) and for the purpose of making reference to the current of former business relationship with the customer. The customer agrees to be sent electronic mail for advertising purposes until further notice.
Such consent may be revoked in writing via e-mail, fax or letter to the contact details stated in the header of these GTC at any time.
15. Applicable law
The Agreement and all mutual rights and duties resulting therefrom as well as any claims between the Agency and the Customer shall be subject to Austrian substantive law, and its conflicts of laws rules and UN Sales Law shall be excluded.
16. Place of performance and place of jurisdiction
16.1 The place of performance shall be the registered office of the Agency. In the case that goods are shipped the risk shall pass to the customer once the agency has delivered the goods to the carrier chosen by it.
16.2 The agreed place of jurisdiction for all legal disputes arising between the Agency and Customer in connection with this contractual relationship shall be the court having jurisdiction over the subject matter and the Agency’s registered office. Notwithstanding the foregoing the Agency shall be entitled to sue the Customer at his general place of jurisdiction.
16.3 If only the masculine form is used in for describing natural persons it shall equally refer to women and men. If a specific person is referred to, the respective gender-specific form shall be used.