Validity, conclusion of contract
- SPREAD (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 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.
- 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.
- 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.
- Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on their basis. The ineffective provision is to be replaced by an effective one that comes closest to the meaning and purpose.
- The agency's offers are subject to change and non-binding.
social media channels
Protection of concepts and ideas
If the potential customer has already invited the agency in advance to create a concept and the agency accepts this invitation before the conclusion of the main contract, the following regulation applies:
- The potential customer and the agency already enter into a contractual relationship ("pitching contract") with the invitation and the acceptance of the invitation by the agency. This contract is also based on the General Terms and Conditions.
- The potential customer acknowledges that the agency already provides cost-intensive advance services with the concept development, although he has not yet assumed any performance obligations.
- 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.
- 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 characteristic character are protected. 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.
- 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 later.
- If the potential customer is of the opinion that the agency presented him with ideas that he had already come up with 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.
- 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.
- The potential customer can release himself from his obligations from this point by paying a reasonable compensation plus 20% sales tax. The exemption only occurs after the full payment of the compensation has been received by the agency.
Scope of services, order processing and the customer's obligation to cooperate
- 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.
- All services provided by the agency (in particular all preliminary drafts, sketches, final artwork, 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. If they are not released in good time, they are deemed to have been approved by the customer.
- The customer will provide the agency with all information and documents that are necessary for the provision of the service 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 due to the fact that work has to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information.
- 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 third-party rights 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 for such an infringement, the customer shall indemnify and hold the agency harmless; he has to compensate her for all disadvantages that arise from claims 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.
External services / commissioning third parties
- 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").
- 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.
- Insofar as the agency commissions necessary or agreed external services, the respective contractors are not vicarious agents of the agency.
- 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.
- Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by the agency.
- 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 deadlines are extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
- 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.
- The agency is entitled to terminate the contract for important reasons with immediate effect. An important reason exists in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;b) the customer continues to violate essential obligations from this contract, such as payment of an amount 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 creditworthiness of the customer 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;
- 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.
- The agency is entitled to terminate the contract for important reasons with immediate effect. An important reason exists in particular if
- Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been rendered. 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.
- The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee at the usual market rate for the services rendered and the transfer of the copyright and trademark rights of use.
- 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.
- 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.
- The agency is entitled to the agreed fee for all work of the agency that is not carried out by the customer for whatever reason. The crediting provision of § 1168 ABGB is excluded. By paying the fee, the customer does not acquire any rights of use for work that has already been carried out; Concepts, drafts and other documents that have not been implemented must be returned to the agency immediately.
payment, retention of title
- 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 fee has been paid in full, including all ancillary obligations.
- If the customer is in arrears with payment, the statutory interest on arrears shall apply in the amount 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.
- 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.
- 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.
- If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
- 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.
Ownership and Copyright
- All of the agency's services, 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, as do the individual workpieces and original drafts and can be used by can be reclaimed from 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. 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.
- Changes or processing of the agency's services, such as 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.
- The agency's consent is required for the use of agency services that go beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright. The agency and the author are entitled to separate appropriate remuneration for this.
- The use of the agency's services or advertising material for which the agency has developed conceptual or design templates after the agency contract has expired also requires the agency's consent, regardless of whether this service is protected by copyright or not.
- For uses according to paragraph 4, the agency is entitled to the full agency remuneration agreed in the expired contract in the first 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.
- The customer is liable to the agency for any unlawful use in double the amount of the appropriate fee for this use.
- 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.
- 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).
- The customer must report any defects immediately, in any case within eight days after delivery/service by the agency, hidden defects within eight days of recognizing them, 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.
- In the event of a justified and timely notice of defects, the customer has the right to have the delivery/service improved or replaced by the agency. 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.
- 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 duty to warn the customer, the agency is not liable for the legal admissibility of content if this was specified or approved by the customer.
- 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.
liability and product liability
- In cases of slight negligence, liability on the part of the agency and its employees, contractors or other vicarious agents ("people") for property damage or financial loss of the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to delay , impossibility, positive breach of contract, culpa in contrahendo, due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. Insofar as the agency's liability is excluded or limited, this also applies to the personal liability of its "people".
- 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, whereby slight negligence is not harms. 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.
- 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.
Data protection (optical emphasis according to case law)
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.
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.
Fulfillment and jurisdiction
- The place of fulfillment 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.
- The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is the competent court for the agency's registered office. Irrespective of this, the agency is entitled to sue the customer at his general place of jurisdiction.
- 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.