1. General Provisions
All business transactions between the client and the agency are exclusively governed by these 'General Terms and Conditions'. Conflicting terms and conditions of the client shall only be effective if they are expressly acknowledged in writing by the agency.
Any agreements that deviate from or supplement these 'General Terms and Conditions' must be made in writing.
Should individual provisions of these 'General Terms and Conditions' be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on their basis. The invalid provision shall be replaced by a valid one that comes closest to its meaning and purpose.
2. Contract Formation
The agency's offers are subject to change. The client is bound by their order for two weeks from its receipt by the agency. Orders from the client are only deemed accepted upon written order confirmation by the agency, unless the agency indicates acceptance of the order by other means, such as by commencing work based on the order.
3. Services and Fees
Unless otherwise agreed, the agency's right to payment for each individual service begins as soon as that service has been rendered. The agency is entitled to demand advances to cover its expenses.
For the services rendered and the settlement of usage rights, the agency receives a fee of 15% of the advertising budget processed through it.
All services of the agency that are not expressly covered by the agreed fee will be remunerated separately. This applies in particular to all ancillary services of the agency.
All cash expenses incurred by the agency that go beyond normal business operations (e.g., for messenger services, extraordinary shipping costs, or travel) must be reimbursed by the client.
Cost estimates by the agency are generally non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the agency by more than 20 percent, the agency will inform the client of the higher costs. The cost overrun is deemed approved by the client unless the client objects in writing within three days of this notification and simultaneously provides more cost-effective alternatives.
For all work of the agency that is not executed for whatever reason, the agency is entitled to reasonable compensation. By paying this compensation, the client acquires no rights whatsoever to this work. Concepts, drafts, and the like that were not executed must be returned to the agency immediately.
4. Presentations
The agency is entitled to reasonable compensation for participation in presentations, which at least covers the agency's entire personnel and material expenses for the presentation as well as the costs of all third-party services. If the agency does not receive an order after the presentation, all services of the agency, in particular the presentation materials and their content, remain the property of the agency; the client is not entitled to continue using them in any form whatsoever; the materials must be returned to the agency immediately.
If the ideas and concepts introduced during a presentation for solving communication tasks are not utilized in advertising materials designed by the agency, the agency is entitled to use the presented ideas and concepts elsewhere.
The transfer of presentation materials to third parties as well as their publication, reproduction, distribution, or other dissemination is not permitted without the express consent of the agency.
5. Property Rights and Copyright Protection
All services of the agency, including those from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as individual workpieces and original drafts, remain the property of the agency and may be reclaimed by the agency at any time, particularly upon termination of the agency contract. By paying the fee, the client only acquires the right to use (including reproduction) for the agreed purpose and within the agreed scope of use. Without a contrary agreement with the agency, the client may only use the agency's services themselves, exclusively in Austria, and only for the duration of the agency contract.
Modifications of the agency's services by the client are only permitted with the express consent of the agency and, insofar as the services are protected by copyright, of the author.
For the use of the agency's services beyond the originally agreed purpose and scope of use, the consent of the agency is required, regardless of whether this service is protected by copyright. For this, the agency and the author are entitled to separate reasonable compensation; reasonable is generally the fee specified in the agency agreement, but at least 7.5% of the payment made by the client to third parties commissioned with the production, distribution, or publication of the advertising materials.
For the use of the agency's services or advertising materials for which the agency has developed conceptual or design templates after the expiration of the agency contract, the consent of the agency is also necessary, regardless of whether this service is protected by copyright.
For this, the agency is entitled to the full claim of the agency compensation agreed in the expired contract, typically 15%, in the first year after the end of the contract. In the second or third year after the expiration of the contract, only half or one quarter of the compensation agreed in the contract. From the fourth year after the end of the contract, no agency compensation is payable.
6. Identification
The agency is entitled to refer to the agency and possibly to the author on all advertising materials and in all advertising measures, without the client being entitled to any compensation for this.
7. Approval
All services of the agency (particularly all preliminary drafts, sketches, final artwork, brush proofs, blueprints, and color prints) must be reviewed by the client and approved within three days. If approval is not given in time, they are deemed approved by the client.
In particular, the client will have the legal permissibility of the agency services reviewed, especially regarding competition and trademark law. The agency will arrange for an extensive legal review only at the written request of the client; the client must bear the associated costs.
8. Deadlines
The agency endeavors to meet the agreed deadlines. However, failure to meet deadlines only entitles the client to assert their statutory rights if they have granted the agency a grace period of at least 14 days. This period begins upon receipt of a reminder letter by the agency. An obligation to pay damages for delay exists only in cases of intent or gross negligence by the agency. Unavoidable or unforeseeable events, particularly delays by the agency's contractors, release the agency from compliance with the agreed delivery deadline in any case.
9. Payment
The agency's invoices are due promptly net cash without any deduction from the invoice date, unless otherwise agreed. In case of late payment, default interest at the current rate of 12% per annum is deemed agreed. Delivered goods remain the property of the agency until full payment.
The client may only offset undisputed or legally established claims or assert a right of retention.
10. Warranty and Damages
The client must submit any complaints in writing within three days of the agency's performance and provide justification. In the case of justified and timely complaints, the client is only entitled to have the agency improve the service.
In case of justified complaints, defects will be remedied within a reasonable period, whereby the client enables the contractor to take all measures necessary for investigation and defect remediation.
The reversal of the burden of proof pursuant to § 294 ABGB is excluded; the existence of the defect at the time of transfer must be proven by the client.
Claims for damages by the client, in particular for delay, impossibility of performance, positive breach of contract, fault at contract formation, defective or incomplete performance, consequential damage, or unlawful acts, are excluded to the extent that they are not based on intent or gross negligence by the agency.
The agency assumes no liability whatsoever for the client's documents entrusted to it for processing.
11. Liability
The agency will carry out the work assigned to it in compliance with generally recognized legal principles and will inform the client in a timely manner of significant risks recognizable to it. However, the client is responsible for compliance with legal provisions, particularly competition law provisions, even for advertising measures proposed by the agency. The client will only approve an advertising measure proposed by the agency (a trademark proposed by the agency) after ensuring its compliance with competition law (trademark law) or when willing to assume the risks associated with implementing the advertising measure (using the trademark).
Any liability of the agency for claims brought against the client on the basis of the advertising measure (the use of a trademark) is expressly excluded if the agency has fulfilled its duty to inform; in particular, the agency is not liable for litigation costs, the client's own attorney fees, or costs of judgment publications, nor for any damage claims or similar claims by third parties.
In the event that the agency itself is held liable due to the implementation of an advertising measure (the use of a trademark), the client shall indemnify and hold the agency harmless: the client must therefore compensate the agency for all financial and other disadvantages (including intangible damages) arising to the agency from being held liable by a third party.
The contractor is only liable for damages if intent or gross negligence can be proven, within the framework of statutory provisions. Liability for slight negligence is excluded. The injured party must prove the existence of gross negligence.
12. Applicable Law
Austrian law exclusively applies to the legal relationship between the client and the agency.
13. Place of Performance and Jurisdiction
The place of performance is the agency's registered office (Vienna).
The locally and materially competent Austrian court (Commercial Court Vienna) for the agency's registered office is agreed upon as the place of jurisdiction for all disputes arising directly between the agency and the client.
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