Terms & Conditions:
All business dealings between the client and the agency are exclusively governed by these ‘standard terms and conditions’. Any terms and conditions of the client that are in conflict with these standard terms and conditions will be effective only if they are expressly recognised by the agency in writing. Agreements that deviate from or amend these ‘standard terms and conditions’ are required to be documented in writing. Should individual provisions of these ‘standard terms and conditions’ become invalid, the binding nature of the remaining provisions and the contracts that have been concluded on their basis will remain unaffected. The invalid provision is to be replaced by a valid provision that comes closest to the business intent and purpose of the provision rendered ineffective.
Conclusion of the contract
The offers made by the agency are non-binding. The client is bound to its order for two weeks from the date of order receipt by the agency. The orders of the client are considered to have been accepted only upon written order confirmation by the agency, unless the agency gives to understand that it has accepted the order, for instance by starting the work on the order.
Service and remuneration
Unless otherwise agreed, the agency becomes entitled to remuneration for each individual service as soon as it has been rendered. The agency is entitled to ask for advance payments to cover its expenses. The agency will receive 15 percent of the advertising budget processed by it as payment for the services rendered and as compensation for the rights of use. All services provided by the agency that are not explicitly covered by the agreed remuneration will be charged separately. This includes, in particular, all incidental services provided by the agency. All cash expenditures incurred by the agency above and beyond the regular business expenses (e.g. for courier services, extraordinary shipping costs or travel) are to be reimbursed by the client.
Cost estimations provided by the agency are in principle non-binding. If the actual costs are expected to exceed the price quoted in writing by the agency by more than 20 percent, the agency will inform the client of the increased costs. The cost overrun will be considered to have been approved by the client if the client does not respond in writing to this notification within three days as well as informing of more cost-effective alternatives. The agency charges an appropriate fee for all work of the agency that is not executed for any reason. By paying this fee, the client does not become entitled to any rights to these works; rather, concepts, design drafts and other similar documents that have not been implemented are to be returned to the agency without delay.
The agreed prices are value-secured based on the consumer price index (CPI) 2015, which is continuously published by Statistics Austria. The starting point for value assurance is the index number announced for the month in which the agreement began. The agreed prices can be adjusted once a year on the basis of the last index figure announced in the past year with effect from the beginning of the following calendar year. The starting point for further adjustments is then the index number on which the respective adjustment is based.
The agency is entitled to appropriate remuneration for participating in presentations; such remuneration must at least cover the agency’s overall personnel and material costs for the presentation as well as the costs for all external services. If the agency does not receive any order after the presentation, all the services performed by the agency, in particular the presentation documents and their contents, will remain the property of the agency; the client is not authorised to make further use of these services in any form whatsoever; rather, the documents are to be returned to the agency without delay. If the ideas and concepts introduced as communications-related solutions during the course of a presentation are not used in the advertising material prepared by the agency, then the agency is authorised to make other use of these ideas and concepts. The client is not allowed to share the presentation documents with third parties, nor is it allowed to publish, reproduce, distribute or circulate these documents without the express approval of the agency.
Ownership and copyright
All the work and services provided by the agency, including those in the form of presentations (e.g. suggestions, ideas, sketches, preliminary designs, scribbles, final artworks, concepts, films, slides), and individual parts thereof, as well as the individual workpieces and original designs will remain the property of the agency and can be requested back by the agency, especially upon termination of the contract with the agency. By paying the remuneration, the client only acquires the right of use (including reproduction) for the agreed purpose and within the agreed scope. Without contrary agreement with the agency, the client may only use the works and services provided by the agency for itself, exclusively in Austria and only for the duration of the contract with the agency. The client may only make changes to the work and services provided by the agency with explicit approval of the agency and – insofar as the work is protected by copyright – of the copyright holder. Approval from the agency is required to use the agency’s works and services for purposes outside the originally agreed object and scope of use, regardless of whether this work is protected by copyright. The agency and the copyright holder are entitled to separate appropriate compensation. The term ‘appropriate’ basically implies the remuneration specified in the agency contract; however, it should be at least 7.5 percent of the fees paid by the client to a third party assigned the task of producing, distributing or publishing the advertising material. Approval from the agency is also required to use the agency’s works and services, or the advertising material for which the agency prepared the conceptional or creative templates, after termination of contract with the agency – regardless of whether this work is protected by copyright.
For such usage, the agency is entitled to the full fees agreed upon in the expired contract, usually 15 percent, in the first year after the end of contract. In the second or third year after the end of contract, it is entitled to only half or a quarter of the fees agreed upon in the contract. No agency fee is payable from the fourth year onwards.
The agency is entitled to refer to the agency, and if required to the copyright holder, on all advertising material and promotional efforts, without the client being entitled to claim any compensation.
All works and services provided by the agency (particularly all preliminary designs, sketches, final artworks, proofs, blueprints and coloured prints) are to be checked by the client and released within three days. If not released within the stipulated period, they will be considered to have been approved by the client. The client must specifically verify the legal permissibility of the works and services provided by the agency, especially in relation to competition laws and trademark legislation. The agency will arrange for external legal verification only if requested by the client in writing; the associated costs are to be borne by the client.
The agency will endeavour to meet the agreed deadlines. In the event of failure to comply with the deadlines, however, the client is entitled to assert its legal rights only after allowing the agency an extension of at least 14 days. This grace period will start from the date of receipt of a formal reminder by the agency. The agency is obliged to pay damages on account of delay only if such delay is caused intentionally or as an act of gross negligence on the part of the agency. Inevitable or unforeseeable events – particularly delays caused by the agency’s contractors – relieve the agency in any case from the obligation to meet the agreed delivery deadlines.
Unless agreed otherwise, the invoices from the agency are due for prompt payment, in net cash and without any deductions, from the date of invoice. In the event of delay in payment, the currently applicable late interest of 12 percent p.a. will be levied as per agreement. Delivered goods remain the property of the agency until full and final payment. The client may only offset payment or assert rights of retention against undisputed or legally established receivables. Handbook for company founders in the field of advertising and market communication by the Professional Association Advertising and Market Communication Industry at Vienna Chamber of Commerce and Industry 3.
Guarantee and indemnification
The client must submit all complaints and their justification in writing within three days of the service being delivered by the agency. If the complaints are justified and made in good time, then the client has the right only to have the service improved by the agency. In the case of a justified notice of defect, the agency will remedy the defects within an appropriate period of time, whereby the client will enable the agency to undertake all measures necessary to examine and remedy the defects. The reversal of the burden of proof in accordance with section 294 of the Austrian Civil Code [Allgemeines Bürgerliches Gesetzbuch (ABGB)] is excluded; the client is responsible for proving the presence of the defect at the time of handover. Indemnity claims by the client, particularly on account of delay, impossibility of performance, positive violation of contractual obligation, culpa in contrahendo, defective or incomplete work, damage caused by defective work or unlawful acts are excluded, provided they are not caused by wilful intent or gross negligence on the part of the agency. The agency assumes no liability for the documents provided by the client to the agency for processing.
The agency will perform the work assigned to it with due regard to the generally recognised legal principles and will duly notify the client of any foreseeable serious risks to the client. However, the client is responsible for compliance with legal provisions, particularly those pertaining to competition laws, even with respect to the advertising measures suggested by the agency. The client will only approve an advertising measure (e.g. a trademark suggested by the agency) if it has assured itself of the compliance with competition (trademark) laws or is prepared to bear the risk associated with implementing the advertising measure (i.e. using the suggested trademark). Any liability of the agency for claims arising from the advertising measure (usage of a trademark) against the client are explicitly excluded if the agency has fulfilled its obligation to inform the client; in particular, the agency assumes no liability for the costs of proceedings, attorney fees of the client or costs of publishing the court decisions, or for any indemnity claims or other similar claims by third parties. In the event that a claim is made against the agency for implementing an advertising measure (usage of a trademark), the client will indemnify and hold the agency harmless against such claims: consequently, the client will reimburse the agency for all financial and other detriments (including non-material damages) incurred by the agency due to the third party claim. The agency will only be liable for damages that can be verified as caused by wilful intent or gross negligence on the part of the agency within the legal framework. Liability for slight negligence is excluded. The onus of proving the existence of gross negligence is on the client.
The legal relationships between the client and the agency are exclusively governed by Austrian law.
Place of fulfilment and jurisdiction
The place of fulfilment is the head office of the consulting company/agency. As per agreement, the place of jurisdiction for all disputes arising directly between the agency and the client will be the competent court at the agency’s registered corporate location. The consulting company is, however, also entitled to invoke another competent court at the client location.