Terms

GENERAL TERMS AND CONDITIONS

1. Validity, conclusion of contract

1.1 Offroad communications (hereinafter referred to as the “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 client, even if no explicit reference is made to them. The General Terms and Conditions are applicable exclusively to legal relations with entrepreneurs, so B2B.

1.2 The version valid at the time of conclusion of the contract shall be decisive. Deviations from these as well as other supplementary agreements with the client are only effective if they are confirmed by the Agency in writing.

1.3 Any terms and conditions of the customer will not be accepted, even if they are known, unless otherwise expressly agreed in writing in individual cases. The Agency expressly contradicts the client’s terms and conditions. There is no need for further objection to the client’s terms and conditions by the agency.

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 amended GTC in writing within 14 days; the customer is expressly informed of the importance of silence in the communication.

1.5 Should individual provisions of these General Terms and Conditions be ineffective, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision shall be replaced by an effective provision that comes closest to the meaning and purpose.

1.6 The Agency’s offers are subject to change and are non-binding.

2. Social media channels

Before placing the order, the Agency expressly points out to the customer that the providers of “social media channels” (e.g. facebook, hereinafter referred to as providers) reserve the right to advertise and perform advertisements for any reason. or remove it. The providers are therefore not obliged to forward content and information to the users. There is therefore an incalculable risk by the Agency that advertisements and appearances will be removed for no reason. In the case of a complaint by another user, the providers are granted the possibility of a counter-notification, but in this case too an immediate removal of the content takes place. In this case, it may take some time to recover from the original, lawful state. The Agency shall operate on the basis of these Terms of Use of the Providers over which it has no influence and shall also base them on the customer’s order. By placing the order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The Agency intends to carry out the customer’s order to the best of its knowledge and belief and to comply with the guidelines of “social media channels”. However, due to the current terms of use and the simple possibility for each user to claim infringements and thus achieve the removal of the content, the Agency cannot be liable for the fact that the commissioned campaign is also available at any time.

3. Concept and idea protection

If the potential client has already invited the Agency to draw up a concept in advance and if the Agency fulfils that invitation before the conclusion of the main contract, the following rules shall apply:

3.1 The potential customer and the agency enter into a contractual relationship (“pitching contract”) by the invitation and acceptance of the invitation by the Agency. The GTC are also based on this contract.

3.2 The potential client acknowledges that the Agency already provides cost-intensive inputs with the concept development, even though he has not yet assumed any performance obligations.

3.3 The concept is subject to the protection of the Copyright Act in its linguistic and graphic parts, insofar as this height of work is reached. The use and processing of these parts without the consent of the Agency is not permitted to the potential customer already on the basis of the Copyright Act.

3.4 The concept also contains advertising-relevant ideas that do not reach the height of work and thus do not enjoy the protection of the Copyright Act. These ideas are at the beginning of every creative process and can be defined as a sparkling spark of everything produced 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. For the purposes of this Agreement, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are considered to be an idea, even if they do not reach work height.

3.5 The potential customer undertakes not to allow or exploit these creative advertising ideas presented by the Agency within the framework of the concept to be economically exploitable or used outside the corrective of a main contract to be concluded at a later date. to be used or used.

3.6 If the potential customer believes that the Agency has presented him with ideas that he has already come to before the presentation, he shall notify the Agency in writing (by e-mail, fax or letter) within 14 days of the date of presentation. evidence that allows for a time allocation.

3.7 In the opposite case, the Contracting Parties assume that the Agency has presented the potential client with a new idea for him. If the idea is used by the client, it can be assumed that the agency has become deserving of it.

3.8 The potential customer may release himself from his obligations under this point by paying reasonable compensation plus 20 VAT. The exemption shall only take place after full receipt of the payment of the compensation by the Agency.

4. Scope of services, order processing and customer’s obligations to cooperate

4.1 The scope of the services to be provided is determined by the description of the service in the agency contract or any order confirmation by the agency, as well as the possible briefing protocol (“offer documents”). Subsequent changes to the content of the service require written confirmation by the Agency. Within the framework specified by the customer, the agency’s freedom of design is in place for the performance of the order.

4.2 All services of the Agency (in particular all preliminary drafts, sketches, pure drawings, brush prints, blueprints, copies, colour prints and electronic files) must be checked by the customer and released by the customer within three working days from receipt by the customer. After this period has elapsed without feedback from the customer, they shall be deemed to have been approved by the customer.

4.3 The client will make available to the Agency in a timely and complete manner all information and documentation necessary for the provision of the service. It will inform them of all circumstances relevant to the performance of the contract, even if they become known only during the execution of the contract. 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 his incorrect, incomplete or subsequently changed information.

4.4 The customer is also obliged to check the documents provided by him for the execution of the order (photos, logos, etc.) for any copyright, trademark, trademark or other rights of third parties (rights clearing) and guarantees that the documents are free of the rights of third parties and can therefore be used for the intended purpose. In the event of only slight negligence or after fulfilling its duty to warn – at least in the internal relationship with the customer – the Agency shall not be liable for a violation of such rights of third parties by means of documents provided. If the Agency is called into account by a third party for such an infringement, the client shall indemnify and hold the Agency harmless; it shall reimburse it for all the disadvantages it suffers from a claim by third parties, in particular the costs of adequate legal representation. The customer undertakes to assist the Agency in the defense of any claims of third parties. The client shall provide the Agency with all documents for this purpose without being requested.

5. Third-party services / assignment of third parties

5.1 The Agency is entitled, at its sole discretion, to perform the service itself, to use itself as vicarious agents in the provision of contractual services and/or to substitute such services (“foreign service”) .

5.2 The assignment of third parties in the context of a third-party service is carried out either in his own name or on behalf of the customer. The Agency will carefully select this third party and ensure that he or she has the necessary professional qualifications.

5.3 Insofar as the Agency commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the Agency.

5.4 The Customer shall enter into obligations of the Agency to third parties that go beyond the term of the contract. This also applies explicitly in the event of termination of the agency contract for good cause.

6. Dates

6.1 Unless expressly agreed as binding, the delivery or performance periods specified shall only be deemed approximate and non-binding. Binding appointments must be recorded in writing or confirmed by the Agency in writing.

6.2 If the Delivery/Performance 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 reasonably be reversible, the performance obligations shall be suspended for the duration and scope of the obstacle and the time limits are extended accordingly. If such delays last more than two months, the client 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 he has given the Agency a reasonable grace period of at least 14 days in writing and this has passed fruitlessly. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.

7. Premature dissolution

7.1 The Agency is entitled to terminate the contract with immediate effect for important reasons. An important reason is, in particular, when:

  1. a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period of 14 days;
  2. b) the customer continues to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate, despite a written warning with a 14-day grace period.
  3. (c) there are legitimate concerns about the creditworthiness of the client and the Client does not make advance payments at the Request of the Agency or provide adequate security prior to the Agency’s performance;

7.2 The customer is entitled to terminate 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 the contract.

8. Fee

8.1 Unless otherwise agreed, the Agency’s fee claim for each individual service arises as soon as it has been provided. The Agency is entitled to require 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 prepare interim or advance statements or to call up on-account payments.

8.2 The fee is understood to be a net fee plus VAT in the statutory amount. In the absence of an agreement in individual cases, the Agency is entitled to a fee of the market standard for the services provided and for the provision of the copyright and trademark rights of use.

8.3 All services of the Agency, which are not expressly compensated by the agreed fee, will be paid separately. All cash expenses incurred by the agency must be replaced by the customer.

8.4 Agency cost estimates are non-binding. If it is foreseeable that the actual costs exceed the written costs of the Agency by more than 15, the Agency will inform the client of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announces cheaper alternatives. If there is a cost overrun of up to 15, a separate communication is not required. This estimate overrun 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 involvement of the Agency, without prejudice to the ongoing other support provided by the Agency, he shall reimburse the Agency for the services provided up to that time in accordance with the fee agreement and to reimburse all costs incurred. If the termination is not justified by a grossly negligent or intentional breach of duty by the Agency, the client must also reimburse the Agency for the entire fee (commission) agreed for this order, whereby the credit remuneration of Section 1168 AGBG is excluded. Furthermore, the Agency shall be indemnify and without complaint in respect of any claims of third parties, in particular from contractors of the Agency. By paying the fee, the customer does not acquire any rights of use in work already performed; concepts, drafts and other documents that have not been implemented shall be defered immediately by the Agency.

9. Payment, retention of title

9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the reoffation of all cash expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including any ancillary liabilities.

9.2 In the event of a delay in payment by the customer, the statutory default interest shall apply to the amount applicable to business transactions. Furthermore, in the event of a delay in payment, the customer undertakes to reimburse the Agency for the resulting collection and collection expenses, insofar as they are necessary for the appropriate legal proceedings. In any event, this includes the costs of two letters of formal notice of payment, currently at least € 20.00 per reminder, as well as a letter of formal notice from a lawyer responsible for collecting them. This does not affect the assertion of further rights and claims.

9.3 In the event of a delay in payment by the customer, the Agency may immediately make all services and partial services provided within the framework of other contracts concluded with the customer due.

9.4 Furthermore, the Agency is not obliged to provide further services until the outstanding amount has been paid (right of retention). This does not affect the obligation to pay the fee.

9.5 If payment has been agreed in instalments, the Agency reserves the right to demand immediate payment of all outstanding debts (loss of time) in the event of non-timely payment of partial amounts or ancillary claims.

9.6 The customer is not entitled to set off his own claims against claims of the Agency, unless the customer’s claim has been acknowledged by the Agency in writing or determined by the court.

10. Property rights and copyright

10.1 All services of the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, pure drawings, concepts, negatives, slides), including individual parts thereof, remain as well as the individual workpieces and original designs owned by the Agency and may be reclaimed by the Agency at any time, in particular upon termination of the contractual relationship. The customer acquires the right of use for the agreed purpose by paying the fee. However, in the absence of an agreement to the contrary, the customer may only use the services of the agency in Austria. The acquisition of rights of use and exploitation of the Agency’s services shall in any case require full payment of the fees charged by the Agency for this purpose. If the customer uses the services of the agency before this date, this use is based on a loan relationship that can be revoked at any time.

10.2 Changes or processing of the Services of the Agency, such as in particular their further development by the customer or by third parties acting for the Agency, are only subject to the express consent of the Agency and, insofar as the services are protected by copyright, the author allowed.

10.3 The use of the Agency’s services that goes beyond the originally agreed purpose and scope of use requires the consent of the Agency, regardless of whether this service is protected by copyright. For this purpose, the Agency and the author shall be entitled to a separate appropriate remuneration.

10.4 For the use of services of the Agency or advertising materials for which the Agency has prepared conceptual or design templates, regardless of whether or not this service is protected by copyright, the Agency’s the approval of the Agency is necessary.

10.5 For uses in accordance with 10.4, the Agency is entitled to 1st year after the end of the contract, entitlement to the full agency remuneration agreed in the expired contract. In 2nd or 2nd 3rd year after the expiry of the contract, only half or one quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, there is no longer any agency remuneration to be paid.

10.6 The Customer undertakes to pay the Agency for any unlawful use of a conventional penalty equal to twice the fee appropriate for such use.

11. Labelling

11.1 The Agency is entitled to refer to the Agency and, if necessary, to the author on all advertising media and in all advertising activities, without the customer being entitled to pay for it.

11.2 Subject to the customer’s possible written revocation 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 its name and company logo. (reference note).

12. Warranty

12.1 The customer must immediately, at least within eight days after delivery/performance by the Agency, notify concealed defects in writing within eight days of the discovery of the defect; otherwise, the service is deemed to have been approved. In this case, the assertion of warranty and damages claims as well as the right to challenge errors due to defects is excluded.

12.2 In the event of justified and timely notification of defects, the customer is entitled to an improvement or exchange of the delivery/performance by the Agency. The Agency will remedy the deficiencies within a reasonable period of time, with the client enabling the Agency to take all necessary measures to investigate and rectify the defect. The Agency shall be entitled to refuse to improve its performance if it is impossible or involves a disproportionate amount of effort for the Agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of improvement, it is the client’s responsibility to transmit the defective (physical) item at his own expense.

12.3 It is also the responsibility of the contracting authority to carry out the verification of the performance for its legal, in particular competition, trademark, copyright and administrative admissibility. The Agency is only obliged to carry out a rough examination of the legal admissibility. In the event of slight negligence or after fulfilling any obligation to warn the customer, the Agency shall not be liable for the legal admissibility of content if it has been specified or approved by the customer.

12.4 The warranty period is six months from delivery/performance. The right to recourse to the Agency pursuant to Section 933b (1) of the German Civil Code (ABGB) expires one year after delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumption regulation of Section 924 of the German Civil Code (ABGB) is excluded.

13. Liability and Product Liability

13.1 In cases of slight negligence, the Agency and its employees, contractors or other vicarious agents (“people”) are excluded from liability for material or financial damage to the client, whether direct or indirect Damages, loss of profit or consequential damages, damages due to delay, impossibility, positive breach of claim, fault at the time of conclusion of the contract, due to defective or incomplete performance. The victim must 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 of the Agency for claims made against the customer by third parties on the basis of the service provided by the Agency (e.g. advertising measure) is expressly excluded if the Agency has complied with its obligation to provide notice or if it is responsible for: it was not recognisable, with slight negligence not harming. In particular, the Agency shall not be liable for legal costs, the client’s own legal fees or the costs of publication of judgments, as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the agency harmless and uncommitted in this regard.

13.3 Claims for damages by the customer shall expire within six months of knowledge of the damage; but after three years from the Agency’s 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, company book number, agency powers, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, UID number) for the purpose of fulfilling the contract and supporting the customer as well as for own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of Information on the existing or former business relationship (reference note) is determined, stored and processed in an automation-supported manner.

 

The client agrees that electronic mail will be sent to him for advertising purposes until revocation.

 

This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details provided in the head of the GTC.

15. Applicable law

The contract and all reciprocal rights and obligations derived from it as well as claims between the Agency and the customer are subject to Austrian substantive law to the exclusion of its referral standards and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

16. Place of performance and place of jurisdiction

16.1 The place of performance is the registered office of the Agency. In the case of dispatch, the risk passes to the customer as soon as the Agency has handed over the goods to the carrier chosen by the Customer.

16.2 The court of jurisdiction for all disputes arising between the Agency and the Client in connection with this contractual relationship shall be the court competent for the seat of the Agency. Notwithstanding this, the Agency is entitled to sue the client at its general place of jurisdiction.

16.3 In so far as designations relating to natural persons are referred to only in male form in this Treaty, they refer to women and men in the same way. When applying the term to certain natural persons, the gender-specific form shall be used.

17. End

By placing the order, the client confirms that he has taken note of the general terms and conditions of offroad communications and declares them to be applicable. This contract is subject to Austrian law. The place of jurisdiction for all disputes between the contracting parties is exclusively Vienna.

 

 

GENERAL TERMS AND CONDITIONS

1. Applicability; Conclusion of contract

1.1 offroad communications (in-the-box “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, i.e. 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 of 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” (e.g. facebook; hereafter referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotion 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 supply 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 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 therefore be based on the GTC.

3.2 The potential customer acknowledgements that already by developing a concept the agency will render cost-intensive services, even though the customer itself 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 [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 characterise 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 have used the creative advertising ideas that 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 means of evidence which allow a chronological alloca tion.

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, coloured 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 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 execution of the order, even if they become known only in the course of execution of the order. The Customer shall bear the costs 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 Cus Tomer. 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 [vicarious agents as defined by section 1313a of the Austrian General Civil Code [ABGB]] and/or to commission a third party to render 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 [vicarious agents] of the Agency.

 

5.4 The Customer shall assume obligations vis-a-vis third parties which survive the contract. This shall expressly apply also in the case of termination of the agency contract for cause.

 

6. Deadlines

 

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, e.g. 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 large 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, e.g. 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 standing credit 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 violated material provisions of this contract despite a written warning and had been granted a grace period of at least 14 days to remedy the breach of the contract.

 

8. Fees

 

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 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 “I’m not Unless work is cancelled on the ground of a breach of the Agency’s duties by gross negligence or wilful intent, the Customer shall, in addition, pay the Agency the total fee (commission) agreed for that contract, and the allowance as defined in Section 1168 of the Austrian Civil Code [ABGB] shall be excluded. Furthermore, the Agency shall be demnified 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 that were not implemented should 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 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 instalments has been agreed, the Agency reserves the right to demand immediate payment of the total debt outstanding if instalments 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 its own claims unless the Customer’s claim has been recognized by the Agency in writing or ascertained by court.

 

10. Title and copyright

 

10.1 The Agency shall retain title to all services of the Agency, including services in connection with presentations (e.g., 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 are 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 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 allowed 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 help 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. Warranty

 

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 hold payments on the ground of complaints. The presumption rule [presumption rule] of section 924 ABGB shall be excluded.

 

13. Liability and product liability

 

13.1 In cases of slight liability 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-a-vis the Customer on the ground of services rendered by the Agency (e.g. advertising and promotion measures) shall be excluded expressly, provided that the Agency complied with its duty to inform or if it was unable to see such a d uty, 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 there from 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.

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