1. Validity, conclusion of contract
1.1 The multimedia agency Marcus Florschütz (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 client, even if they are not expressly referred to. The GTC apply exclusively to legal relationships with businesses, i.e., B2B.
1.2 The version valid at the time of conclusion of the contract shall prevail. Deviations from these Terms and Conditions, as well as any other supplementary agreements with the Client, shall only be valid if confirmed in writing by the Agency.
1.3 Any terms and conditions of the customer will not be accepted, even if they are known, unless expressly agreed otherwise in writing in individual cases. The agency expressly objects to the customer's terms and conditions. A further objection to the customer's terms and conditions by the agency is not required.
1.4 Changes to the Terms and Conditions will be communicated to the customer and are deemed to have been agreed upon if the customer does not object to the amended Terms and Conditions in writing within 14 days. The customer will be expressly informed of the significance of the non-observance and of the specific amended clauses in the communication. This presumption of consent does not apply to changes to essential service content 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 under them. The invalid provision shall be replaced by a valid one that most closely approximates the meaning and purpose of the invalid provision.
1.6 The Agency’s offers are subject to change and non-binding.
2. Social media channels
Before placing an order, the agency expressly informs the client 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 obligated to forward content and information to users. Therefore, there is an incalculable risk that advertisements and appearances may be removed without reason. In the event of a complaint from another user, the providers will grant the opportunity for a counterstatement, but even in this case, the content will be removed immediately. Restoring the original, legal status may take some time in this case. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the client's order on them. By placing an order, the client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The agency intends to carry out the client's assignment to the best of its knowledge and belief and to adhere to the guidelines of social media channels. However, due to the currently applicable terms of use and the ease with which any user can claim infringement and thus have content removed, the agency cannot guarantee that the commissioned campaign will be accessible at all times.
3. Concept and idea protection
If the potential client has already invited the agency to create a concept in advance and the agency accepts this invitation before the conclusion of the main contract, the following rule applies:
3.1 The invitation and the agency's acceptance of the invitation constitute a contractual relationship between the potential client and the agency ("Pitching Agreement"). This agreement is also subject to the General Terms and Conditions.
3.2 The potential client acknowledges that the agency is already providing cost-intensive preliminary services by developing the concept, even though the client has not yet assumed any performance obligations.
3.3 The concept, in its linguistic and graphical elements, to the extent that they constitute a work, is protected by copyright law. The potential client is not permitted to use or adapt these elements without the agency's consent, based on copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the level of a work and therefore do not qualify for copyright protection. These ideas are at the beginning of every creative process and can be defined as the igniting spark of all subsequent creations, and thus as the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. For the purposes of this agreement, advertising slogans, advertising copy, graphics and illustrations, advertising materials, etc., are considered ideas, even if they do not reach the level of a work.
3.5 The potential client undertakes not to commercially exploit or have exploited, or use, the creative advertising ideas presented by the agency as part of the concept, outside the scope of a main contract to be concluded later.
3.6 If the potential client believes that the agency has presented ideas that he or she had already thought of before the presentation, he or she must notify the agency of this by email within 14 days of the presentation, citing evidence that allows for a chronological attribution.
3.7 Otherwise, the contracting parties shall assume that the agency has presented a new idea to the potential client. If the client uses the idea, the agency shall be deemed to have received credit for the idea.
3.8 The potential client may be released from its obligations under this clause by paying reasonable compensation, calculated on a case-by-case basis, plus 20% VAT. This release shall only take effect after the full payment of the compensation has been received by the agency.
4. Scope of services, order processing and customer’s duty to cooperate
4.1 The scope of the services to be provided is determined by the service description in the agency agreement or any order confirmation from the agency, as well as any briefing protocol ("offer documents"). Subsequent changes to the scope of services require written confirmation from the agency. Within the framework specified by the client, the agency retains discretion in fulfilling the order.
4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color prints, and electronic files) must be reviewed by the Client and approved by the Client within three working days of receipt. After this period has elapsed without feedback from the Client, the services shall be deemed approved by the Client.
4.3 The Client shall provide the Agency with all information and documentation necessary for the provision of the service in a timely and complete manner. The Client shall inform the Agency of all circumstances relevant to the performance of the contract, even if these circumstances only become known during the execution of the contract. The Client shall bear the costs incurred if work has to be repeated or delayed by the Agency as a result of the Client's incorrect, incomplete, or subsequently amended information.
4.4 The client is further obligated to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, branding rights, or other third-party rights (rights clearance) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of slight negligence or after fulfilling its duty to warn – at least in its internal relationship with the client – the agency shall not be liable for any infringement of such third-party rights by the documents provided. If a third party asserts a claim against the agency for such an infringement, the client shall indemnify and hold the agency harmless; the client shall compensate the agency for all disadvantages incurred as a result of such a claim, in particular the costs of appropriate legal representation. The client undertakes to support the agency in defending itself against any third-party claims. The client shall provide the agency with all documents for this purpose without being asked to do so.
5. External services / commissioning of third parties
5.1 The Agency is entitled, at its sole discretion, to perform the service itself, to engage the services of competent third parties as vicarious agents in the provision of contractual services and/or to substitute such services (“third-party services”).
5.2 The Agency shall engage third parties to provide services either in its own name or on behalf of the Client, with the latter subject to prior notification to the Client. The Agency shall carefully select such third parties and ensure that they possess the necessary professional qualifications.
5.3 The customer is responsible for any obligations to third parties identified to the customer that extend beyond the term of the contract. This also expressly applies in the event of termination of the agency contract for good cause.
6. Dates
6.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by the agency.
6.2 If the Agency's delivery/performance is delayed for reasons beyond its control, such as force majeure events and other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and extent of the impediment, and the deadlines shall be extended accordingly. If such delays last more 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 granting the Agency a reasonable grace period of at least 14 days in writing, and this grace period has expired without result. Claims for damages by the Client due to non-performance or delay are excluded, except in cases of proof of intent or gross negligence.
7. Early termination
7.1 The Agency is entitled to terminate the contract with immediate effect for good cause. Good cause shall exist in particular if:
a) the performance of the service becomes impossible for reasons for which the Customer is responsible or is further delayed despite a grace period of 14 days;
b) the Customer continues to violate essential obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns regarding the Customer's creditworthiness and, at the Agency's request, the Customer neither makes advance payments nor provides suitable security prior to the Agency's performance;
7.2 The Client is entitled to terminate the contract for good cause without granting a grace period. Good cause shall 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 breach.
8. Fee
8.1 Unless otherwise agreed, the agency's fee for each individual service arises as soon as it has been rendered. The agency is entitled to request advance payments to cover its expenses. For orders with an (annual) budget of €…………….. or longer periods, the agency is entitled to issue interim or advance invoices or request payments on account.
8.2 The fee is understood to be a net fee plus VAT at the statutory rate. Unless otherwise agreed in individual cases, the Agency shall be entitled to a fee at the customary market rate for the services rendered and the transfer of copyright and trademark usage rights.
8.3 All services provided by the Agency not expressly covered by the agreed fee will be paid separately. All out-of-pocket expenses incurred by the Agency must 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 Agency's written estimate by more than 15%, the Agency will notify the Client of the higher costs. The cost overrun is deemed to have been approved by the Client if the Client does not object in writing within three working days of this notification and simultaneously provides more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost overrun is deemed to have been approved by the Client from the outset.
8.5 If the client unilaterally changes or cancels commissioned work without involving the agency – without prejudice to the agency's ongoing other support – the client must compensate the agency for the services rendered up to that point in accordance with the fee agreement and reimburse all incurred costs. Unless the cancellation is due to a grossly negligent or intentional breach of duty by the agency, the client must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the offsetting remuneration pursuant to Section 1168 of the AGBG (General Terms and Conditions of Business) is excluded. Furthermore, the agency must be indemnified and held harmless against any claims by third parties, in particular by the agency's contractors. By paying the fee, the client does not acquire any rights of use to work already performed; rather, any unexecuted concepts, drafts, and other documents must be returned to the agency immediately.
9. Payment, retention of title
9.1 The fee is due immediately upon receipt of the invoice and without deduction, unless specific payment terms are agreed in writing for individual cases. This also applies to the re-invoicing of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the fee, including all ancillary liabilities, has been paid in full.
9.2 In the event of default by the customer, statutory default interest will apply at the rate applicable to business transactions. Furthermore, in the event of default, the customer agrees to reimburse the agency for any reminder and collection fees incurred, insofar as they are necessary for appropriate legal action. This includes, in any case, the costs of two reminder letters at the standard market rate of currently at least €20.00 per reminder, as well as one reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of default of payment by the Customer, the Agency may demand immediate payment of all services and partial services rendered under other contracts concluded with the Customer.
9.4 Furthermore, the agency is not obligated to provide any further services until the outstanding amount has been paid (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment by instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event of non-payment of partial amounts or additional claims on time (default).
9.6 The customer is not entitled to offset his own claims against claims of the agency, unless the customer’s claim has been acknowledged in writing by the agency or established by a court.
10. Property rights and copyright
10.1 All services provided by the Agency, including those resulting from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as the individual work pieces and original drafts, remain the property of the Agency and can be reclaimed by the Agency at any time – particularly upon termination of the contractual relationship. By paying the fee, the Client acquires the right to use the Agency's services for the agreed purpose. Unless otherwise agreed, the Client may use the Agency's services exclusively in Austria. The acquisition of usage and exploitation rights to Agency services requires full payment of the fees charged by the Agency. If the Client already uses the Agency's services prior to this time, this use is based on a rental agreement that can be revoked at any time.
10.2 Modifications or modifications to the Agency's services, including their further development by the Client or by third parties working for the Client, are only permitted with the express consent of the Agency and – if the services are protected by copyright – of the copyright holder. The release of all so-called "open files" is therefore expressly not part of the contract. The Agency is not obligated to release them. This means that without a contractual assignment of the rights of use, including for "electronic works," the Client has no legal claim to them.
10.3 The use of the Agency's services beyond the originally agreed purpose and scope of use requires the Agency's consent, regardless of whether the service is protected by copyright. The Agency and the copyright owner are entitled to separate, appropriate compensation for this.
10.4 The use of the Agency's services or advertising materials for which the Agency has developed conceptual or design templates shall also require the Agency's consent after the expiration of the Agency Agreement, regardless of whether these services are protected by copyright or not.
10.5 For uses pursuant to paragraph 4, the agency is entitled to the full agency fee agreed upon in the expired contract in the first year after the contract's expiration. In the second and third years after the contract's expiration, the agency is entitled to only half and one-quarter of the agreed fee, respectively. Starting in the fourth year after the contract's expiration, no agency fee is payable.
10.6 The Client shall be liable to the Agency for any unlawful use in the amount of twice the appropriate fee for such use.
11. Labeling
11.1 The Agency is entitled to refer to the Agency and, if applicable, to the author on all advertising materials and in all advertising measures without the Client being entitled to any remuneration for this.
11.2 The Agency is entitled, subject to the Client's written revocation at any time, to refer to the existing or former business relationship with the Client on its own advertising media and in particular on its Internet website using the Agency's name and company logo (reference).
12. Warranty
12.1 The Client must report any defects immediately, in any case within eight days of delivery/performance by the Agency, and any hidden defects within eight days of their discovery, in writing and describing the defect. Otherwise, any deviation from the service shall be deemed approved. In this case, the assertion of warranty and compensation claims, as well as the right to contest the contract on the grounds of error, due to defects are excluded.
12.2 In the event of a justified and timely notification of defects, the customer has the right to request that the agency repair or replace the delivery/service. The agency will remedy the defects within a reasonable period of time, whereby the customer will enable the agency to take all necessary measures to investigate and remedy the defects. The agency is entitled to refuse to repair the service if this is impossible or would involve disproportionate expenditure for the agency. In this case, the customer is entitled to the statutory rights of cancellation or reduction in price. In the event of repair, the client is responsible for the return of the defective (physical) item at its own expense.
12.3 It is also the client's responsibility to review the service for its legal admissibility, particularly with regard to competition, trademark, copyright, and administrative law. The agency is only obligated to conduct a rough review of legal admissibility. In the event of slight negligence or after fulfilling any duty to warn the client, the agency shall not be liable for the legal admissibility of content if this content was specified or approved by the client.
12.4 The warranty period is six months from the date of delivery/performance. The customer is not entitled to withhold payments due to defects. The presumption rule of Section 924 of the German General Terms and Conditions Act (Allgemeines 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 ("personnel") are not liable for any material or financial damages suffered by the Client, regardless of whether these are direct or indirect damages, lost profits, consequential damages, damages due to delay, impossibility, positive breach of contract, negligence upon conclusion of the contract, or defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that the Agency's liability is excluded or limited, this also applies to the personal liability of its "personnel."
13.2 Any liability of the Agency for claims asserted against the Client based on the services provided by the Agency (e.g., advertising measures) is expressly excluded if the Agency has fulfilled its duty to provide information or if such a duty was not recognizable to the Agency; slight negligence shall not be considered detrimental. In particular, the Agency shall not be liable for legal costs, the Client's own legal fees, or the costs of publishing judgments, as well as for any claims for damages or other claims by third parties; the Client shall indemnify and hold the Agency harmless in this regard.
13.3 The Client's claims for damages expire six months after knowledge of the damage; however, in any event, three years after the Agency's infringement occurred. Claims for damages are limited to the net contract value.
14. Applicable law
The contract and all mutual rights and obligations as well as claims arising therefrom between the Agency and the Client shall be governed by Austrian substantive law, excluding its conflict of law provisions and excluding 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 shipment, the risk shall pass to the Customer as soon as the Agency has handed over the goods to the carrier of its choice.
15.2 The place of jurisdiction for all legal disputes arising between the Agency and the Client in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the Agency's registered office. Notwithstanding this, the Agency shall be entitled to sue the Client at its general place of jurisdiction.
15.3 Where references to natural persons in this Agreement are made only in the masculine form, they refer to both women and men equally. When referring to specific natural persons, the gender-specific form shall be used.
