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 in their terms of use to reject or remove advertisements and appearances for any reason. Accordingly, the providers are not obliged to forward content and information to the users. There is therefore a risk, which cannot be calculated by the agency, that advertisements and appearances may be removed without cause. In the event of a complaint by another user, the providers are granted the opportunity to make a counterstatement, but even in this case the content is removed immediately. In this case, the restoration of the original, lawful state may take some time. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the order of the customer on them. 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 execute the order of the customer to the best of its knowledge and to comply with the guidelines of “social media channels”. However, due to the currently valid terms of use and the simple possibility of each user to claim violations of rights and thus achieve a removal of the content, the agency cannot guarantee that the commissioned campaign is also retrievable at all times.

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 shall have freedom of design in the fulfillment of the order.

4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be reviewed by the Customer and approved by the Customer within three working days of receipt by the Customer. After expiry of this period without feedback from the Customer, they shall be deemed to have been approved by the Customer.

4.3 The Customer shall make available to the Agency in a timely manner and in full all information and documents required for the provision of the service. He shall inform the Agency of all circumstances that are of importance for the execution of the order, even if these only become known during the execution of the order. The Customer shall bear the expenses incurred by the fact that work has to be repeated or is delayed by the Agency as a result of the Customer’s incorrect, incomplete or subsequently changed information.

4.4 The Customer shall furthermore be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights or other rights of third parties (rights clearing) and shall guarantee that the documents are free of third-party rights and can therefore be used for the intended purpose. The Agency shall not be liable in the case of merely slight negligence or after fulfillment of its duty to warn – at least in the internal relationship with the Customer – due to an infringement of such third-party rights by documents provided. If a claim is made against the Agency by a third party due to such an infringement of rights, the Customer shall indemnify and hold the Agency harmless; the Customer shall compensate the Agency for all disadvantages incurred by the Agency as a result of a claim made against it by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in the defense of any claims by third parties. The customer shall provide the agency with all documents for this purpose without being requested to do so.

Unless expressly agreed as binding, stated delivery or service deadlines are only approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing. 

6.2 If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted 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 last more than two months, the Customer and the Agency shall be entitled to withdraw from the contract. 

6.3 If the Agency is in default, the Customer may only withdraw from the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly. Claims for damages by the Customer due to non-performance or default shall be excluded, except in the case of evidence of intent or gross negligence.

Unless otherwise agreed, the Agency’s fee claim arises for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses. In the case of orders extending over a longer period of time, the Agency shall be entitled to issue interim or advance invoices or to call for payments on account.

8.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the Agency shall be entitled to a fee in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.

8.3 All services rendered by the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Customer.

8.4 The Agency’s cost estimates shall not be binding. If it is foreseeable that the actual costs will exceed those estimated by the Agency in writing by more than 15%, the Agency shall inform the Customer 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 such notification and at the same time discloses less expensive alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the customer from the outset.

8.5 If the Client unilaterally changes or cancels work commissioned without involving the Agency – without prejudice to the Agency’s ongoing other support – the Client shall compensate 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 due to a grossly negligent or intentional breach of duty by the Agency, the Customer shall also reimburse the Agency for the entire fee agreed for this order (commission), whereby the credit compensation of § 1168 AGBG is excluded. Furthermore, the Agency shall be indemnified and held harmless against any claims of third parties, in particular contractors of the Agency. With the payment of the fee, the customer does not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed are to be returned to the agency immediately.

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, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time – in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. In the absence of an agreement to the contrary, however, the customer may use the services of the agency exclusively in Austria. The acquisition of rights of use and exploitation of services of the Agency requires in any case the full payment of the fees charged by the Agency for it. If the Customer already uses the Agency’s services before this point in time, this use shall be based on a loan relationship that can be revoked at any time. 

10.2 Modifications or adaptations of the Agency’s services, such as in particular their further development by the Customer or by third parties working for the Customer, shall only be permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author.

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

10.4 The Agency’s consent shall also be required for the use of the Agency’s services or of advertising materials for which the Agency has prepared conceptual or design templates, after expiry of the Agency Contract, irrespective of whether this service is protected by copyright or not.

10.5 For uses pursuant to Paragraph 4, the Agency shall be entitled to the full Agency remuneration agreed in the expired Agreement in the 1st year after the end of the Agreement. In the 2nd or 3rd year after the expiry of the contract only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration shall be payable.

10.6 The Customer shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.

The customer shall report any defects in writing without delay, in any case within eight days after delivery/service by the agency, hidden defects within eight days after recognition of the same, describing the defect; otherwise the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.

12.2 In the event of 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 remedy the defects within a reasonable period of time, whereby the Customer shall enable the Agency to take all measures necessary to examine and remedy the defects. The Agency shall be entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for the Agency. In this case, the customer is entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be incumbent on the Customer to carry out the transfer of the defective (physical) item at its own expense.

12.3 It shall also be incumbent upon the Client to carry out the review of the performance with regard to its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. The Agency shall only be obliged to carry out a rough check of legal admissibility. The Agency shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfillment of any duty to warn the Customer, if such content was specified or approved by the Customer.

12.4 The warranty period shall be six months from delivery/service. The right of recourse against the Agency pursuant to Section 933b (1) ABGB shall expire one year after delivery/service. The customer is not entitled to withhold payments due to defects. The presumption provision of § 924 ABGB is excluded.

The customer agrees that his personal data, namely name/company, profession, date of birth, company 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, VAT number) may be used 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 reference to the existing or former business relationship with the customer (reference). 

The customer agrees that electronic mail may be sent to him for advertising purposes until revoked. 

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

16.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court having subject-matter jurisdiction for the Agency’s registered office. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at its general place of jurisdiction.

16.3 Insofar as in this Agreement designations referring to natural persons are only stated in the masculine form, they shall refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.