GENERAL TERMS AND CONDITIONS OF BUSINESS
by Michael Springer, MSc and the agency PLANBILD MULTIMEDIA e.U.
Registered office in 6122 Fritzens, Austraße 51, e-mail: hello@planbild.eu

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1. Validity, conclusion of contract

1.1 The …… (hereinafter “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 no express reference is made to them. The terms and conditions are only applicable to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded 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 will not be accepted, even if known, unless otherwise expressly agreed in writing in individual cases. The agency expressly contradicts the customer's terms and conditions. A further objection to the general terms and conditions of the customer by the agency is not required.
1.4 Changes to the GTC will be announced to the customer and are deemed to have been agreed if the customer does not object to the changed 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 validity 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.

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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 in their terms of use to reject or remove advertisements and appearances for any reason . The providers are therefore not obliged to forward content and information to the users. There is therefore a risk, which the agency cannot calculate, that advertisements and appearances will be removed for no reason. In the event of a complaint from another user, the providers grant the possibility of a counter-notification, but the content will be removed immediately in this case as well. In this case, it may take some time to regain the original, legal status. 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 an 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 every user to claim violations of the law and thus have the content removed, the agency cannot guarantee that the commissioned campaign can also be accessed at any time.

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3. Concept and idea protection

If the potential customer has already invited the agency to create a concept and the agency accepts this invitation before the main contract is concluded, the following regulation applies:
3.1 The potential customer and the agency enter into a contractual relationship (“pitching contract”) as soon as the invitation is issued and the agency accepts the invitation. This contract is also based on the General Terms and Conditions.
3.2   The potential customer acknowledges that the agency already provides cost-intensive advance services with the concept development, although he himself has not yet assumed any performance obligations.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach work height. The potential customer is not permitted to use and edit these parts without the consent of the agency, if only because of the copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the level of a 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 the igniting spark of everything that is 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 distinctive 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 do not reach the level of a work.
3.5 The potential customer undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by the agency as part of the concept outside of the corrective of a main contract to be concluded at a later date. 

3.6 If the potential customer is of the opinion that the agency presented him with ideas that he already had before the presentation, he must notify the agency of this within 14 days of the day of the presentation by e-mail, citing evidence , which allow a chronological assignment 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 prospective customer can release himself from his obligations under this point by paying reasonable compensation plus 20% sales tax. The exemption only occurs after the full payment of the compensation has been received by the agency.

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4. Scope of services, order processing and customer's obligations 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 minutes ("offer documents"). Subsequent changes to the service content require written confirmation from the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
4.2 All services provided by the agency (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by the customer 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 necessary for the provision of the service available to the agency in a timely and complete manner. He will inform you of all circumstances that are important for the execution of the order, even if they only become known during the execution of the order. The customer bears the expenses incurred as a result of 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.) provided for the execution of the order for any copyrights, trademark rights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of are the rights of third parties and can therefore be used for the intended purpose. The agency is not liable in the case of slight negligence or after fulfilling its duty to warn - at least in the internal relationship with the customer - for a violation of such rights of third parties through the documents made available. If the agency is sued by a third party because of such an infringement, the customer shall indemnify and hold the agency harmless; he has to compensate her for all disadvantages that arise from claims made by third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties. The customer shall make all documents available to the agency without being asked.

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5. Third-party services / engagement of third parties

5.1 The Agency is entitled, at its own discretion, to perform the service itself, to use expert 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 is carried out either in their 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 The customer has to enter into obligations towards third parties that go beyond the contract period. This also applies expressly in the event of termination of the agency contract for good cause.

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6. Appointments

6.1 Unless expressly agreed as binding, specified delivery or service periods are only approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by the agency.
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 with reasonable means, the performance obligations are suspended for the duration and to the extent of the obstacle and the period is 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 he has given 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 proof of intent or gross negligence.

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7. Premature Dissolution

7.1 The agency is entitled to terminate the contract for important reasons with immediate effect. An important reason exists in particular if
a) the execution 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 under this contract, such as payment of an amount that has become due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) There are legitimate concerns about the customer's creditworthiness and the customer does not make any advance payments at the request of the agency nor provide suitable security before the agency performs the service;
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 contract.

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8. Fee

8.1 Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been provided. The agency is entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € …………….., or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to request payments on account.
8.2 The fee is understood to be 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 usual market rate for the services rendered and the transfer of the copyright and trademark rights of use.
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 The Agency's cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the agency's written estimate 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 notice and at the same time announce cheaper alternatives. If the costs are exceeded by up to 15%, a separate agreement is not required. Exceeding the cost estimate is deemed to have been approved by the customer from the outset.
8.5 If the customer unilaterally changes or cancels commissioned work without the agency's involvement - without prejudice to other ongoing support 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 due to a grossly negligent or intentional breach of duty by the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the offsetting 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 already performed; Concepts, drafts and other documents that have not been implemented are to be returned to the agency immediately.

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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 have been agreed in writing in individual cases. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the payment has been made in full, including all ancillary obligations.
9.2 If the customer defaults in payment, the statutory interest on arrears shall apply at the rate applicable to entrepreneurial transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the resulting dunning and collection expenses, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the usual market amount of currently at least € 20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 If the customer defaults in payment, the agency can demand immediate payment of all services and partial services rendered as part 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 paid (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment in installments was 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 the agency's claims, unless the customer's claim has been recognized in writing by the agency or has been determined by a court.

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10. Ownership and Copyright

10.1 All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, remain the property of the agency just like the individual workpieces and original designs and can can be reclaimed by the agency at any time - especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. However, unless otherwise agreed, the customer may only use the agency's services in Austria. The acquisition of rights of use and exploitation of the agency's services 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 agency services that go 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. The agency and the author are entitled to separate appropriate remuneration for this.
10.4 For the use of agency services or advertising material for which the agency has developed conceptual or design templates, the consent of the agency is also required after the agency contract has expired, regardless of whether this service is protected by copyright or not.
10.5 For uses according to paragraph 4, the agency is entitled to the full agency remuneration agreed in the expired contract in the 1st year after the end of the contract. In the 2nd or 3rd year after the end 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 agency fee is payable.
10.6 The customer is liable to the agency for any illegal use in double the amount of the appropriate fee for this use.

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11. Labeling

11.1 The agency is entitled to refer to the agency and possibly to the author on all advertising material and in all advertising measures, without the customer being entitled to a fee for this.
11.2 Subject to the written revocation of the customer, which is possible at any time, the agency is entitled to refer to the existing or former 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).

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12. Warranty

12.1 The customer must report any defects immediately, at least within eight days after delivery/service by the agency, hidden defects within eight days after they have been identified, in writing with a description of the defect; otherwise the service is deemed to have been approved. In this case, the assertion of warranty and damage claims as well as the right to contest errors due to defects is excluded.
12.2 In the event of a justified and timely notice of defects, the customer has the right to have the agency improve or replace the delivery/service. The agency will rectify the defects within a reasonable period of time, whereby the customer enables the agency to take all measures necessary for the investigation and rectification of defects. The agency is entitled to refuse to improve the service if this 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 case of improvement, it is up to the customer to transmit the defective (physical) item at his own expense.
12.3 It is also the client's responsibility to check the service for its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. The agency is only obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfilling any obligation to warn the customer, the agency is not liable for the legal admissibility of content if this was specified or approved by the customer.
12.4 The warranty period is six months from delivery/service. The right of recourse against the agency according to § 933b paragraph 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption of § 924 ABGB is excluded.

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13. Liability and Product Liability

13.1 In cases of slight negligence, the agency and its employees, contractors or other vicarious agents (“people”) are not liable for property damage or financial damage to the customer, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to default, impossibility, positive breach of contract, fault at the conclusion of the contract, due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. Insofar as the liability of the agency 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 on the basis of the service provided by the agency (e.g. advertising measure) is expressly excluded if the agency has fulfilled its obligation to inform or if such was not recognizable to it, with slight negligence no harm. In particular, the agency is not liable for legal costs, the customer's own legal fees or costs for the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer must indemnify and hold harmless the agency in this respect.
13.3 Claims for damages by the customer expire six months after knowledge of the damage; but in any case after three years from the infringing action of the agency. Claims for damages are limited to the amount of the net order value.

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14. Privacy
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, UID number) for the purpose of fulfilling the contract and looking after the customer and for our own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of pointing out the existing or previous business relationship with the customer (reference note) determined automatically, are stored and processed.

The client agrees that electronic mail will be 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 at the top of the General Terms and Conditions.

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15. Governing 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 to the exclusion of its reference standards and to the exclusion of the UN Sales Convention.

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16. Place of Performance and Jurisdiction

16.1 The place of performance is the registered office of the agency. In the case of shipping, the risk passes to the customer as soon as the agency has handed over the goods to the transport company it has chosen.
16.2 The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is the court with subject matter jurisdiction for the agency’s registered office. Irrespective 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 the masculine form in this contract, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form is to be used.

 

Supplementary information on the General Terms and Conditions
for advertising agencies

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1. The "General Terms and Conditions" (GTC) issued by the Advertising & Market Communication Association of the Austrian Economic Chamber are merely a sample intended to provide reference points and suggestions. It is therefore by no means guaranteed that the model terms and conditions will be applied in all details by every communication company in the proposed form! Like any template, the one for the general terms and conditions can also be supplemented or adapted according to the specific requirements of the respective company. For example, if a company not only provides services but also supplies goods (e.g. software), the terms and conditions will most likely contain a retention of title clause.

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2. GTC are pre-formulated contractual clauses that one party submits to the other before entering into a contract. However, they are not automatically included in the contract and cannot be imposed on the contractual partner! They only apply if they have been contractually agreed. The contractual partner or customer must therefore agree to the general terms and conditions used by his supplier. Consent can also be given conclusively, for example if the client does not object to the GTC (which, for example, were attached to the offer).
According to the prevailing case law, the data protection provisions must be visually highlighted in the general terms and conditions. The Advertising and Market Communication Association recommends formatting these text passages in bold.

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3. The customer can only be assumed to have consented to the GTC if the latter even knew that his supplier used GTC. As a rule, it is sufficient if the contractor draws the client's attention to the GTC - in writing or verbally. However, the notice must be clear; Small print and barely legible notices on the back of an offer are not sufficient. In the case of a contract offer on the Internet, a button or a link can be used to refer to the General Terms and Conditions.

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4. The mere reference to general terms and conditions is not sufficient. The client must demonstrably have had the opportunity to inspect the General Terms and Conditions before the contract is concluded! Whether he actually takes a peek or not is irrelevant. In the case of an offer on the Internet, the contractual partner should also have the option of printing out or saving the General Terms and Conditions.
5. If reference is only made to the General Terms and Conditions after the contract has been concluded (e.g. on a delivery note or an invoice), it is too late: The General Terms and Conditions are then not part of the contract.

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6. If both contractual partners use terms and conditions that contradict each other in some points, there is no agreement of will, so that the contradicting terms and conditions do not become part of the contract. If the contradictory general terms and conditions concern important points of the contract, the entire contract may not come about in individual cases. It is therefore strongly advisable that the contracting parties reach an early agreement on the conflicting provisions of their respective terms and conditions.

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7. A complete exclusion of liability, an exclusion of warranty in the event of defective service provision or similar unilateral clauses grossly disadvantage the other contractual partner and are therefore inadmissible i. S. of § 879 Para. 3 ABGB. If there are doubts as to the legal harmlessness of the present terms and conditions, it is advisable to take professional legal advice.

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8. In the case of a public tender, only the client specifies the general terms and conditions. If, in the course of a public tender, an entrepreneur offers terms and conditions that differ from those required by the client, the entrepreneur does not offer in accordance with the tender, which is usually an irremediable defect and leads to the entrepreneur’s withdrawal.