1.       Applicability, Conclusion of Contract

 

1.1 OFF CONCEPTS GmbH (hereinafter referred to as the "Agency") renders its services exclusively on the basis of the following General Terms and Conditions (GTC). These shall apply to all legal relationships between OFF CONCEPTS GmbH and the Customer, even if not expressly referred to. The GTC are exclusively applicable for legal relationships with entrepreneurs, i.e. B2B.

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

1.3 Any General Terms and Conditions of the Client shall not be accepted, even if known, unless otherwise expressly agreed in writing. The Agency expressly objects to the Client's General Terms and Conditions. The Agency does not require a further objection to the Customer's General Terms and Conditions.

1.4 Amendments to the General Terms and Conditions shall be notified to the Client and shall be deemed to have been agreed to if the Client does not object to the amended General Terms and Conditions in writing within 14 days; the Client shall be expressly notified of the significance of silence as well as of the specifically amended clauses in the communication. This consent requirement does not apply to changes in the essential content of the services and fees.

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

1.6 The Agency's offers are subject to change and are not binding.

 

2.      Social media channels

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The Agency expressly points out to the Client prior to placing the order 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. Therefore, there is an incalculable risk that advertisements and appearances may be removed without cause. In the event of a complaint by another user, the providers will grant the possibility of a retraction, but also in this case the contents will be removed immediately. The restoration of the original, lawful state may take some time in this case. The Agency works on the basis of these Terms and Conditions of the Provider, on which it has no influence, and also applies them to the Client's order. By placing the order, the Client expressly acknowledges that these Terms and Conditions of Use shall (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 currently valid terms of use and the simple possibility for any user to assert violations of law and thus achieve the removal of content, the Agency cannot guarantee that the commissioned campaign will be available at all times.

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3.      Protection of concepts and ideas

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If the potential Client has already invited the Agency to prepare a concept in advance and the Agency complies with this invitation prior to the conclusion of the main contract, the following provision shall apply:

3.1 Upon the invitation and acceptance of the invitation by the Agency, the potential Client and the Agency shall enter into a contractual relationship ("Pitching Agreement"). This contract is also subject to the GTC.  

3.2 The potential Client acknowledges that the Agency has already provided cost-intensive preliminary services in the development of the concept, although he himself has not yet assumed any service obligations. 

3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, as far as these reach the level of a work. The use and processing of these parts without the consent of the Agency is not permitted to the potential client on the basis of the Copyright Act alone.

3.4 The concept also contains ideas relevant to advertising which do not reach the level of a work of art and therefore do not enjoy the protection of the Copyright Act. These ideas stand at the beginning of every creative process and can be defined as the ignition spark for everything that is created later and thus as the origin of a marketing strategy. Therefore, those elements of the Idea that are original and give the Marketing Strategy its distinctive character shall be protected. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are considered to be ideas within the meaning of this Agreement, even if they do not reach the level of a work of authorship.

3.5 The potential Client undertakes to refrain from commercially exploiting or having exploited, or exploiting or having exploited, the creative advertising ideas presented by the Agency within the framework of the concept, outside the corrective of a subsequently concluded main contract.

3.6 If the potential Client is of the opinion that the Agency has presented him with ideas that he has already come up with prior to the presentation, he shall notify the Agency of this by e-mail within 14 days of the day of the presentation, citing evidence that permits a temporal allocation. 

3.7 In the opposite case, the 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 shall be assumed that the Agency has earned a fee for this.    

3.8 The potential customer can be released from his obligations under this point by payment of an appropriate compensation, which is calculated on a case-by-case basis, plus 20 % VAT. The release shall take effect only after the Agency has received the payment in full. 

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4.      Scope of Services, Order Processing and Client's Obligation to Cooperate

 

4.1 The scope of the services to be rendered results from the description of services in the Agency Contract or a possible order confirmation by the Agency as well as a possible briefing protocol ("offer documents"). Subsequent changes to the scope of services require written confirmation by the Agency. The Agency shall be free to design the performance of the Order within the framework specified by the Client.

4.2 All of the Agency's services (in particular all preliminary drafts, sketches, clean drawings, brush strokes, blueprints, copies, color prints and electronic files) are to be checked by the Client and approved by the Client within three working days of receipt. After this period has expired without a response from the Client, they shall be deemed to have been approved by the Client. 

4.3 The Client shall provide the Agency in a timely and complete manner with all information and documents required for the performance of the work. The Principal shall inform the Agency of all circumstances relevant to the performance of the Contract, even if they become known during the performance of the Contract. The Client shall bear any expenses incurred by the Agency as a result of work having to be repeated or delayed due to incorrect, incomplete or subsequently changed information provided by the Client.

4.4 The Client is further obligated to check the materials (photos, logos, etc.) provided for the execution of the order for possible copyrights, trademarks, or other rights of third parties (rights clearance) and guarantees that the materials are free of rights of third parties and can therefore be used for the intended purpose. The Agency shall not be liable - at least in the internal relationship with the Client - for the infringement of such third-party rights by provided materials in the event of slight negligence or after fulfilling its duty to warn. If the Agency is sued by a third party for such a violation of rights, the Client shall hold the Agency harmless and indemnify it; the Client shall reimburse the Agency for all losses incurred by the Agency as a result of such a suit by a third party, in particular the costs of appropriate legal representation. The Client undertakes to support the Agency in the defence against any claims by third parties. The Client shall make all documents available to the Agency for this purpose without being requested to do so.

 

5.      Third Party Services / Assignment of Third Parties

 

5.1 The Agency shall be entitled, at its own discretion, to perform the work itself, to engage competent third parties as vicarious agents and/or to substitute such work ("Third Party Work").

5.2 The assignment of third parties within the scope of a Third Party Service shall be carried out either in the Agency's own name or in the name of the Principal, the latter after prior notification of the Principal. The Agency shall carefully select such third parties and ensure that they have the required professional qualifications.

5.3 The Client shall be responsible for any obligations to third parties that are made known to the Client and that extend beyond the term of the Agreement. This shall also expressly apply in the event of a termination of the Agency Contract for good cause.

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6.      Deadlines

 

6.1 Unless expressly agreed as binding, any delivery or performance deadlines shall be deemed to be approximate and non-binding. Binding time agreements shall be recorded in writing or confirmed in writing by the Agency. 

6.2 If the Agency's delivery or performance is delayed for reasons beyond its control, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, the Agency's obligation to perform shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last longer than two months, the Client and the Agency shall be entitled to withdraw from the contract. 

6.3 If the Agency is in default, the Client may only withdraw from the contract after he has set the Agency a reasonable grace period of at least 14 days in writing and this grace period has expired without result. Claims for damages on the part of the Client due to non-fulfilment or default are excluded, except in cases of proven intent or gross negligence.

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7.      Early Dissolution

 

7.1 The Agency shall be entitled to terminate the Agreement with immediate effect for important reasons. An important reason exists in particular if

a) the performance of the service becomes impossible for reasons for which the Client is responsible or is further delayed despite the setting of a 14-day grace period; 

b) the customer, despite a written reminder setting a 14-day grace period, continues to violate material obligations under this contract, such as payment of a due amount or duties to cooperate.

c) there are justified doubts as to the Client's creditworthiness and the Client, at the Agency's request, neither makes advance payments nor provides adequate security for the Agency's performance;

7.2 The Client shall be entitled to terminate the contract without notice for important reasons. An important reason shall be deemed to exist 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 violation.

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8.      Fee

 

8.1 Unless otherwise agreed, the Agency shall be entitled to remuneration for each individual service as soon as it has been provided. The Agency shall be entitled to demand advance payments to cover its expenses. In the case of an order volume with an (annual) budget of € 20,000.00 netto or in the case of orders that extend over a longer period of time, the Agency shall be entitled to issue interim invoices or advance invoices or to demand payments on account.

8.2 The fee shall be understood as a net fee plus the statutory value-added tax. Unless otherwise agreed in individual cases, the Agency shall be entitled to a fee in the amount customary in the market for the services provided and the transfer of the copyright and trademark rights.

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

8.4 The Agency's cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the costs estimated by the Agency in writing by more than 15%, the Agency shall draw the Client's attention to 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 notification and at the same time announces less expensive alternatives. In the event of a cost overrun of up to 15%, no separate agreement is required. Such cost overruns shall be deemed to have been approved by the Client from the outset.

8.5 If the Principal, without the Agency's involvement, changes or terminates work commissioned by the Agency without the Agency's involvement - irrespective of any other ongoing support provided by the Agency - the Principal shall pay the Agency for the work performed up to that point in accordance with the fee agreement and reimburse the Agency for all costs incurred. If the termination is not based on a grossly negligent or intentional breach of duty on the part of the Agency, the Client shall also reimburse the Agency for the entire fee agreed upon for this order (provision), whereby the offsetting payment pursuant to § 1168 of the Austrian Civil Code (ABGB) shall be excluded. Furthermore, the Agency shall indemnify and hold harmless the Client from and against any and all claims of third parties, in particular of the Client's customers. Upon payment of the fee, the Client shall not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed shall 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 and without deduction, unless special terms of payment have been agreed upon in writing. This shall also apply to the invoicing of all out-of-pocket expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all ancillary obligations.

9.2 In the event of the Client's default in payment, the statutory interest on arrears at the rate applicable to business transactions shall apply. Furthermore, the Client undertakes to reimburse the Agency for the costs of reminders and collection in the event of delayed payment, insofar as these are necessary for appropriate legal prosecution. This includes at least the costs of two reminders at the current market rate of at least € 20.00 per reminder as well as the costs of a reminder sent by a lawyer. The assertion of further rights and claims remains unaffected. 

9.3 In the event of default in payment on the part of the Client, the Agency shall be entitled to demand immediate payment of all services and partial services rendered within the framework of other contracts concluded with the Client. 

9.4 Furthermore, the Agency shall not be obliged to provide further services until the amount due has been paid (right of retention). The obligation to pay the fee shall remain unaffected. 

9.5 If payment in installments has been agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event of untimely payment of installments or ancillary claims (default).

9.6 The Client is not entitled to set off any claims against the Agency's claims, unless the Client's claim has been acknowledged in writing by the Agency or has been legally established.

 

10.    Ownership and Copyright

 

10.1 All of the Agency's services, including those arising from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, sketches, re-drawings, concepts, negatives, dias), as well as individual parts thereof, shall remain the property of the Agency, as shall the individual work pieces and original drafts, and may be reclaimed by the Agency at any time, in particular upon termination of the contract. By paying the fee, the Client acquires the right of use for the agreed purpose. In the absence of an agreement to the contrary, the Client may only use the Agency's services in Austria. The acquisition of the 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 such services. If the Client uses the Agency's services prior to this date, such use shall be based on a loan agreement that may be terminated at any time. 

10.2 Changes or processing of the Agency's services, in particular their further development by the Client or by third parties acting for the Client, shall only be permitted with the express consent of the Agency and - insofar as the services are protected by copyright - of the author. The disclosure of all so-called. "Open Files" is expressly not part of the contract.  The Agency is not obligated to hand them over. I.e. without a contractual transfer of the rights of use, even for "electronic work", the Client has no claim to this. 

10.3 Any use of the Agency's work beyond the originally agreed purpose and scope of use shall require the Agency's consent, irrespective of whether such work is protected by copyright. The Agency and the originator shall be entitled to separate and 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 drafts after the expiration of the Agency contract, regardless of whether this service is protected by copyright or not.

10.5 The Agency shall be entitled to royalty payments for uses pursuant to Item 4 in the first year after the end of the contract. The Agency shall be entitled to the full Agency fee agreed upon in the expired contract. In the second and third year after the end of the contract, the Agency shall only be entitled to half or a quarter of the contractually agreed remuneration. From the 4. From the fourth year after the end of the contract, no agency fee shall be payable.

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

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11.     Labelling

 

11.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the copyright holder on all advertising material and in all advertising measures, without the Client being entitled to any remuneration for this.

11.2 The Agency is entitled, subject to written revocation by the Client at any time, to refer to the existing or former business relationship with the Client with its name and company logo on its own advertising media and, in particular, on its website (reference).

 

12.     Warranty 

 

12.1 The Client shall notify the Agency in writing of any defects without delay, at the latest within eight days of delivery/performance by the Agency, and of any hidden defects within eight days of their discovery, stating a description of the defect; otherwise any deviation from the performance shall be deemed to have been approved. In this case, the assertion of warranty claims and claims for damages as well as the right to plead error due to defects shall be excluded.

12.2 In the event of justified and timely notification of defects, the Client shall be entitled to have the Agency improve or replace the delivery/service. The Agency shall remedy the defect within a reasonable period of time, provided that the Client allows the Agency to take all measures necessary for the examination and remedy of the defect. The Agency shall be entitled to refuse to remedy the defect if this is impossible or involves unreasonably high costs for the Agency. In this case, the Client shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, the Client shall be obliged to return the defective (physical) item at its own expense.

12.3 The Client shall also be responsible for checking the performance for its legal, in particular competition, trademark, copyright and administrative legality. The Agency shall only be obliged to carry out a rough examination of the legal admissibility. The Agency shall not be liable for the legal admissibility of content in the event of slight negligence or after the fulfilment of any duty to warn the Client, if such content has been provided or approved by the Client.

12.4 The warranty period is six months from delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG 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") shall not be liable for any damage to the Client's property or assets, regardless of whether such damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that the liability of the Agency is excluded or limited, this shall also apply to the personal liability of its "People". 

13.2 Any liability on the part of the Agency for claims asserted against the Client on the basis of the services provided by the Agency (e.g. advertising measures) is expressly excluded if the Agency has complied with its duty to provide information or if such a duty was not apparent to it, whereby slight negligence does not constitute grounds for liability. In particular, the Agency shall not be liable for court costs, the Client's own lawyer's fees or costs for the publication of judgments or for any claims for damages or other claims by third parties; the Client shall hold the Agency harmless in this respect.

13.3 The Client's claims for damages shall become statute-barred six months after knowledge of the damage, but in any case three years after the Agency's act of infringement. Claims for damages are limited in amount to the net value of the order.

 

14.    Applicable law

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The contract and all reciprocal rights and obligations as well as claims arising therefrom between the Agency and the Client shall be governed by Austrian substantive law to the exclusion of its conflict of laws rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

 

15.     Place of performance and jurisdiction

 

15.1 The place of performance is the Agency's registered office. In the case of dispatch, the risk shall pass to the Client as soon as the Agency has handed over the goods to the carrier selected by it.

15.2 The place of jurisdiction for all disputes arising between the Agency and the Client in connection with this contract shall be the competent court at the registered office of the Agency. Notwithstanding this, the Agency shall be entitled to sue the Client at his general place of jurisdiction.

15.3 Insofar as this contract refers to natural persons only in the masculine form, this shall apply equally to women and men. When applying the term to certain natural persons, the respective gender-specific form shall be used.

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