1. Validity, conclusion of contract
Bud & Terence GmbH (hereinafter referred to as "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 not expressly referred to. The GTC are only applicable for legal relationship with entrepreneurs, so B2B.
In each case, the valid version at the time of the conclusion of the contract is decisive. Deviations from these as well as other supplementary agreements with the customer are only valid if they are confirmed in writing by the agency.
Any terms and conditions of the customer will not be accepted, even if they are known, unless otherwise agreed in writing in an individual case. The terms and conditions of the customer expressly contradicts the agency. A further objection to the customer's terms and conditions by the agency is not required.
Changes to the terms and conditions will be announced to the customer and shall be deemed agreed if the customer does not object to the changed terms and conditions in writing within 14 days; The customer is expressly advised of the importance of silence in the communication.
Should individual provisions of these General Terms and Conditions be ineffective, this shall not affect the liability of the remaining provisions and the contracts concluded on their basis. The ineffective provision shall be replaced by an effective one which comes closest to the purpose.
The offers of the agency are non-binding.
2. Social Media Channels
3. Concept and idea protection
If the potential customer has previously invited the agency to draw up a concept, and if the agency complies with this invitation before the conclusion of the main contract, the following provision applies:
Already by the invitation and the acceptance of the invitation by the agency, the potential customer and the agency enter into a contractual relationship ("pitching contract"). This contract is also based on the terms and conditions.
The potential customer acknowledges that the agency already provides cost-intensive intermediate services when the concept is drafted, even though it has not yet undertaken any performance obligations.
The concept is subject to the protection of copyright law in its linguistic and graphic parts, as far as this work height is concerned. The use and processing of these parts without the consent of the agency is not permitted to the potential customer on the basis of copyright law.
The concept also contains advertising-relevant ideas that do not reach the height 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 spark of everything later produced and thus as the origin of a marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic character. In particular, advertising slogans, copywriting, graphics and illustrations, advertising material, etc. are regarded as an idea in the sense of this agreement, even if they do not reach a factory height.
The potential customer commits himself to refrain from using these commercial advertising ideas presented by the agency in the context of the concept economically from the corrective of a main contract to be later economically exploited or to let exploit or to use or to let use.
If the potential customer believes that the agency has presented him with ideas that he has already come across prior to the presentation, he shall notify the agency within 14 days of the date of the presentation by e-mail, citing evidence; which allow a temporal assignment to announce.
In the opposite case, the contracting parties assume that the agency has presented the potential customer with a new idea. If the idea is used by the customer, then it can be assumed that the agency was thereby meritorious.
3.8 The potential customer may exempt himself from his obligations under this point by paying a reasonable compensation plus 20% VAT. The exemption does not occur until full receipt of payment of the compensation to the Agency.
4. Scope of services, order processing and cooperation obligations of the customer
The scope of the services to be provided results from the terms of reference in the agency contract or any order confirmation by the agency, as well as the possible briefing protocol ("Offer documents"). Subsequent changes to the service content require the written confirmation of the agency. Within the framework specified by the customer, there is freedom of the agency to fulfill the order.
All services of the agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) are to be checked by the customer and released by him within three working days from receipt by the customer. After expiry of this period without feedback from the customer, they are deemed approved by the customer.
The Client will promptly and fully provide the Agency with all information and documentation necessary to provide the service. He will inform you of all circumstances that are important for the execution of the order, even if they become known only during the execution of the order. The Customer shall bear the expenses arising from the fact that work due to its incorrect, incomplete or subsequently changed information must be repeated by the Agency or delayed.
The customer is further obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of charge Rights of third parties and can therefore be used for the intended purpose. In the event of mere negligence or fulfillment of its obligation to warn - at least in the internal relationship with the customer - the agency is not liable for breach of such third-party rights through documents provided. If the agency is claimed by a third party for such an infringement, the customer shall indemnify and hold the agency harmless; he has to compensate her for any disadvantages caused by third-party claims, in particular the costs of adequate legal representation. The customer undertakes to assist the agency in warding off any claims of third parties. The customer shall provide the agency with all documents without being requested to do so.
5. External services / commissioning of third parties
The agency is entitled at its own discretion to carry out the service itself, to use knowledgeable third parties as vicarious agents in the provision of contractual services and / or to substitute such services ("external service").
The commissioning of third parties as part of a third-party service takes place either in the customer's own name or on behalf of the customer. The agency will carefully select this third party and ensure that it has the required professional qualifications.
In obligations to third parties, which go beyond the contract period, the customer has to enter. This also applies in the case of a termination of the agency contract for good cause.
Specified delivery or service periods are, unless expressly agreed as binding, only as approximate and non-binding. Binding appointments must be recorded in writing or confirmed by the agency in writing.
The delivery / service of the agency is delayed for reasons for which it is not responsible, such as Events of force majeure and other unforeseeable events that can not be averted by reasonable means shall suspend the performance obligations for the duration and scope of the obstacle and extend the time limits accordingly. If such delays continue for 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 withdraw from the contract only after he has set the agency in writing a reasonable grace period of at least 14 days and this has passed without success. Claims for damages of the customer due to non-performance or default are excluded, except in case of intent or gross negligence.
7. Premature resolution
The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
a) performance of the service is rendered impossible for reasons for which the customer is responsible, or is delayed further despite setting a grace period of 14 days;
b) the customer continues, despite a written warning with a grace period of 14 days, against material obligations under this contract, such. Payment of a sum due or obligation to cooperate, violates.
c) there are legitimate concerns about the creditworthiness of the client and the latter does not make any advance payments at the request of the agency, nor does it provide adequate security before the Agency's performance;
The customer is entitled to terminate the contract for important reasons without granting a grace period. An important reason exists in particular if the Agency, despite a written warning with a reasonable period of grace of at least 14 days to remedy the breach of contract, violates essential provisions of this contract.
Unless otherwise agreed, the Agency's fee for each individual service arises as soon as it has been rendered. The agency is entitled to demand advances to cover its expenses. From an order volume with an (annual) budget of € 10,000, - or such, which extend over a longer period of time, the agency is entitled to make interim billing or forecasting or to call up payments on account.
The fee is understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to royalties in the usual market amount for the services provided and for the granting of the copyright and trademark rights of use.
All services of the agency, which are not expressly compensated by the agreed fee, will be paid separately.
If the client unilaterally modifies or terminates commissioned work without the involvement of the agency - without prejudice to the ongoing other support provided by the latter - he shall reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the demolition is not justified by a grossly negligent or intentional breach of duty by the agency, the customer must also reimburse the Agency for the entire fee agreed for this order (commission), whereby the crediting charge of § 1168 AGBG is excluded. Furthermore, the agency is to be made harmless and harmless with regard to any claims of third parties, in particular contractors of the agency. By paying the fee, the customer acquires no rights of use for work already performed; non-executed concepts, drafts and other documents must be returned to the Agency without delay.
9. Payment, retention of title
The fee is payable immediately upon receipt of the invoice and without deductions unless special terms of payment have been agreed in writing in individual cases. The goods delivered by the Agency remain the property of the Agency until full payment of the fee including all ancillary liabilities.
In case of late payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default of payment, the customer undertakes to reimburse the agency for the resulting dunning and collection charges, insofar as they are necessary for the purpose of legal pursuit. In any case, this includes the costs of two letters of formal notice amounting to at present € 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.
In the event of late payment by the Customer, the Agency may immediately forfeit all services and partial services provided under 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 remuneration remains unaffected.
If payment has been agreed in installments, the Agency reserves the right, in the event of non-timely payment of installments or ancillary claims, to demand immediate payment of all outstanding debt (loss of time).
The customer is not entitled to set off its own claims against claims of the agency, unless the customer's claim has been recognized in writing by the agency or judicially determined.
10. Ownership and copyright
All services of the agency, including those from presentations (eg suggestions, ideas, sketches, preliminary drafts, scribbles, final artworks, concepts, negatives, slides), even individual parts thereof, as well as the individual workpieces and design originals remain the property of the agency and can by the agency at any time - in particular at termination of the contractual relationship - be demanded. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the services of the agency in Austria. In any case, the acquisition of rights of use and exploitation of Agency services requires the full payment of the fees charged by the Agency. If the customer uses the services of the agency before this date, then this use is based on a revocable loan at any time.
Changes or processing of services of the agency, in particular their further development by the customer or by third parties working for the latter, are only permitted with the explicit consent of the agency and - insofar as the services are protected by copyright - of the author.
For the use of services of the Agency, which goes beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright, the consent of the Agency is required. For this, the agency and the author are entitled to a separate appropriate compensation.
For the use of services of the agency or of advertising material for which the agency has drafted conceptual or design templates, the agency's consent is also required after expiry of the agency contract, irrespective of whether this service is protected by copyright or not.
For uses in accordance with 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 expiry of the contract, only half or one 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 duplicate 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 claim for compensation.
Subject to the written revocation of the customer, which is possible at any time, the agency is entitled to point out on its own advertising media and in particular on its Internet website with name and company logo the existing or former business relationship with the customer (reference note).
The customer must report any defects immediately, in any event within eight days of delivery / performance by the agency, hidden defects within eight days after detection thereof, in writing under description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects are excluded.
In the case of justified and timely notice of defects, the customer has the right to improve or exchange the delivery / service by the agency. The Agency will remedy the deficiencies in a timely manner, allowing the Client to provide the Agency with all necessary measures to investigate and correct the defects. The Agency is entitled to refuse to improve performance if it is impossible or disproportionately expensive for the Agency. In this case, the customer is entitled to the legal conversion or reduction rights. In the case of improvement, it is up to the client to carry out the transmission of the defective (physical) thing at his expense.
It is also the responsibility of the client to check the performance for its legal, in particular competition, trademark, copyright and administrative law permissibility. The agency is only obliged to conduct a rough examination of legal admissibility. In the case of slight negligence or after fulfillment of any warning obligation towards the customer, the agency is not liable for the legal permissibility of contents if these have been specified or approved by the customer.
The warranty period is six months from delivery / service. The right to recourse to the agency in accordance with § 933b (1) AGBG expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.
13. Liability and product liability
In cases of slight negligence, the Agency and its employees, contractors or other vicarious agents ("people") shall not be liable for damage to property or pecuniary loss of the Customer, irrespective of whether direct or indirect damage, loss of profit or consequential damage, damages due to delay , Impossibility, positive breach of contract, negligence on conclusion of the contract, due to faulty 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".
Any liability of the Agency for claims that are made against the customer due to the service provided by the agency (eg advertising) is expressly excluded if the agency has fulfilled its obligation to inform or was not recognizable for them, whereby slight negligence is not harm. In particular, the agency is not liable for litigation costs, own legal fees of the customer or costs of judgments as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the agency harmless.
Claims for damages of the customer expire in six months from knowledge of the damage; but in any case after three years from the injury act of the agency. Claims for damages are limited in amount to the net order value.
The customer agrees that his personal data, namely name / company, occupation, date of birth, commercial 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 information, VAT number) for the purpose of contract fulfillment and support of the customer as well as for own advertising purposes, for example for the sending of offers, advertising leaflets and newsletters (in paper and electronic form), as well as for the indication of the customer's existing or former business relationship (reference note) automatically supported, stored and processed. The client agrees that electronic mail will be sent to him for advertising purposes until further notice.
This consent may be revoked at any time in writing by e-mail, fax or letter to the contact details stated in the header of the Terms and Conditions.
15. Applicable law
The contract and all derived reciprocal rights and obligations as well as claims between the agency and the customer are subject to the Austrian substantive law excluding its referral norms and to the exclusion of the UN sales law.
16. Place of Performance and Jurisdiction
Place of fulfillment is the seat of the agency. Upon shipment, the risk passes to the customer as soon as the agency has handed over the goods to their chosen carrier.
The place of jurisdiction for all disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court of competent jurisdiction for the seat of the Agency. Regardless, the agency is entitled to sue the customer at his general place of jurisdiction.
Insofar as names referring to natural persons in this contract are given in masculine form only, they refer to women and men in the same way. When applying the term to certain natural persons, the gender-specific form must be used.
(As of 01/2019, currently valid version)