General Terms and Conditions of
i-explain e.U.
Dipl.-Ing. Andreja Balon Kral
Panholzerweg 8
A-4030 Linz
AUSTRIA
Company registration no.: FN513865i
Tel.: +43 732 662 085
e-mail: studio(at)i-explain.at
1. Applicability; Conclusion of contract
1.1 The “i-explain Balon Kral e.U. “(from now on “Agency”) shall provide its services exclusively based on the following General Terms and Conditions (GTC). They shall apply to all legal relationships between the Agency and the Customer, even if they are not expressly referred to.
1.2 The version applicable at the time of a contract’s conclusion shall be relevant. Deviations from these GTC and other supplementary agreements with the Customer shall only be effective if they have been confirmed by the Agency in writing.
1.3 The terms and conditions of the Customer, if any, shall not be accepted, even if the Agency knows them unless expressly agreed otherwise in writing on a case-by-case basis. The Agency objects explicitly to the Customer’s GTC. No other Agency objection to the Customer’s GTC shall be required.
1.4 The Customer shall be informed about amendments to the GTC; they shall be deemed agreed upon unless the Customer objects to the amended GTC in writing within 14 days. In the information, the Customer will be expressly informed about the consequence of silence on his part.
1.5 If any provisions of these General Terms and Conditions are ineffective, the binding nature of the remaining provisions and the contracts concluded based on the same shall not be affected. The ineffective provision shall be replaced by an adequate provision that comes as close as possible to the meaning and purpose of the ineffective one.
1.6 The Agency’s offers shall be subject to change without notice and non-binding.
2. Social Media Channels
Before an order is placed, the Agency expressly points out to the Customer that providers of “social media channels” (e.g., Facebook; from now on referred to as Providers), in their terms and conditions of use, reserve the right to reject or remove advertisements or promotional appearances for any reason whatsoever. Accordingly, Providers are not obliged to forward content or information to users. Thus, there is a risk, which the Agency cannot calculate, that advertisements or promotional appearances are removed for no reason. Although in the case of a complaint from a different user, providers offer an opportunity to reply, the content will also be immediately removed. Restoring the original, lawful condition may take some time in that case. The Agency works based on the Providers’ terms and conditions of use, on which it has no influence, and makes them the basis of Customer orders. By placing the order, the Customer expressly acknowledges that those terms and conditions of use (co-)determine the rights and duties of a contractual relationship, if any. The Agency intends to execute the Customer’s order to the best of its knowledge and belief and comply with the “social media channels policies.” Due to the terms and conditions of use that are currently applicable and the fact that every user can easily allege a violation of the law with the aim that contents will be removed, the Agency cannot guarantee that the ordered campaign can be retrieved at any time.
3. Protection of Concepts and Ideas
If a potential Customer has already invited the Agency beforehand to develop a concept and if the Agency accepts this invitation before the conclusion of the principal contract, the following shall apply:
3.1 By the invitation and acceptance of the invitation by the Agency, the potential Customer and the Agency enter into a contractual relationship (“pitching contract”). That contract will also be based on the GTC.
3.2 The potential Customer acknowledges that the agency will render cost-intensive services by developing a concept already, even though the Customer himself has not taken on any performance duties yet.
3.3 The linguistic and graphic parts of the concept are protected by the Austrian Copyright Act [Urheberrechtsgesetz] to the extent that they reach the level of originality required for copyright protection. Due to the Austrian Copyright Act alone, the potential Customer is not permitted to use or edit those parts without the Agency’s consent.
3.4 Furthermore, the concept contains ideas relevant to advertising that do not reach the originality required for copyright protection and are thus not protected by the Austrian Copyright Act. Such ideas are generated at the beginning of every creative process and may be defined as the creative spark for all subsequent work results and, thus, as the origin of the marketing strategy. Accordingly, those concept elements are protected, which are unique and characterize the marketing strategy. For this Agreement, ideas shall, in particular, mean advertising slogans, texts, graphics and illustrations, advertising means, etc., even if they do not reach the level of originality required for copyright protection.
3.5 The potential Customer undertakes not to exploit or have exploited commercially and/or used the creative advertising ideas that the Agency presented as part of the concept in any context other than the corrective of a principal contract to be concluded later.
3.6 If the potential Customer believes that the Agency presented ideas to him that he already had before the presentation, he shall notify the Agency thereof via e-mail within 14 days of the day of the presentation and include means of evidence that allow a chronological allocation.
3.7 Otherwise, the Parties will assume that the Agency presented a new idea to the potential Customer. If the Customer uses the idea, it has to be assumed that the Agency received remuneration.
3.8 The potential Customer may be released from his duties under this Clause if he pays reasonable compensation plus 20% VAT. Such release shall become effective only after the Agency receives the full compensation payment.
4. Scope of services; Order processing; Customer’s duties to co-operate
4.1 The scope of the services to be rendered shall be based on the specifications of the Agency Agreement or the Agency’s acknowledgment of order, if any, and the briefing report, if any (“Offer Documents”). Subsequent modifications of the services shall be subject to the Agency’s written confirmation. When executing the order, the Agency shall be free at its discretion within the framework specified by the Customer.
4.2 All Agency services (including but not limited to preliminary designs, sketches, final drawings, proofs, blueprints, copies, colored prints, and electronic files) shall be checked by the Customer and released within three working days of receipt by the Customer. If they are not released within that period, they shall be deemed approved by the Customer. After that period has expired with no reply from the Customer, they shall be deemed accepted.
4.3 The Customer shall make all information and documents required for rendering the service accessible to the Agency completely and in time. The Customer shall notify the Agency of all circumstances relevant to the execution of the order, even if they become known only in the course of execution of the order. The Customer shall bear the costs incurred due to the fact that work has to be done again by the Agency or is delayed because of his incorrect, incomplete, or subsequently modified specifications.
4.4 In addition, the Customer is obliged to clear the documents made available by him for the execution of the order (photos, logos, etc.) for potential copyrights, trademark rights, marks, or other rights of third parties (rights clearance) and guarantees that the documents are free from rights of third parties and may therefore be used for the desired purpose. In the case of merely slight negligence or if it has fulfilled its duty to warn the Customer, the Agency shall not be liable (at least as regards the relationship between the Agency and the Customer) for an infringement of such rights of third parties by documents made available by the Customer. Suppose the Agency is held liable for a violation of such rights. In that case, the Customer shall indemnify and hold harmless the Agency and shall compensate the Agency for any disadvantages suffered by it due to third-party claims, including costs of reasonable legal representation. The Customer supports the Agency in defending claims of third parties, if any. For this purpose, the Customer shall provide the Agency with all documents without request.
5. External services; Commissioning of third parties
5.1 The Agency shall be entitled at its discretion to render the services itself, to employ expert third parties as agents [Erfüllungsgehilfen as defined by Section 1313a of the Austrian General Civil Code [AGBG]], and/or to commission a third party to render such services (“External Service”).
5.2 Commissioning third parties in connection with an External Service shall be done in the Agency’s or the Customer’s name. The Agency shall select the relevant third party with care and ensure that it is appropriately qualified.
5.3 Insofar as the agency commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the agency.
5.4 The Customer shall assume obligations vis-à-vis third parties that survive the contract. This shall also apply in the case of termination of the agency contract for cause.
6. Deadlines
6.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.
6.2 If the Agency’s delivery/service is delayed for reasons for which the Agency is not responsible, such as force majeure or other unforeseeable events that cannot be prevented by reasonable means, the service obligations shall be suspended for the duration and to the extent of the impediment, and the deadlines shall be extended accordingly. If such delays continue for over two months, the Customer and the Agency shall be entitled to rescind the contract.
6.3 If the Agency is in default, the Customer may only rescind the contract after granting the Agency a reasonable grace period of at least 14 days in writing and after such period has expired fruitlessly. The Customer’s claims for damages on the grounds of non-performance or default shall be excluded unless intent or gross negligence can be proved.
7. Early termination
7.1 The Agency shall be entitled to terminate the contract for cause with immediate effect. Causes shall include but not be limited to situations where
(a) provision of service becomes impossible for reasons for which the Customer is responsible or is further delayed even though the Customer was granted a grace period of 14 days;
(b) The Customer continues to violate material obligations under this contract, such as, e.g., the obligation to pay an amount payment of which has been demanded or duties to cooperate, despite a written warning and having been granted a grace period of 14 days.
(c) legitimate concerns exist regarding the Customer’s credit standing and, upon the Agency’s request, the Customer fails to make advance payments or to furnish suitable security before provision of the service by the Agency;
7.2 The Customer shall be entitled to terminate the contract for cause without granting a grace period. A cause shall be, in particular, where the Agency repeatedly violates material provisions of this contract despite a written warning and having been granted a grace period of at least 14 days to remedy the breach of the contract.
8. Fees
8.1 Unless otherwise agreed, the Agency’s entitlement to fees shall arise for any specific service once it has been rendered. The Agency shall be entitled to ask for advances to cover its expenses.
8.2 The fees shall be stated as net fees plus statutory value-added tax. If no agreement on fees has been concluded in a specific case, the Agency shall be entitled to fees at market rates for the services rendered and for the transfer of copyrights and marks.
8.3 The Agency’s services that are not expressly covered by the agreed fees shall be paid for separately. The Customer shall reimburse the Agency for all cash expenses incurred.
8.4 Cost estimates provided by the Agency shall be non-binding.
8.5 The agreed fee shall be paid to the agency for all agency work that is not carried out by the Customer for whatever reason. The offsetting provision of § 1168 AGBG is excluded. 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 immediately.
9. Payment; Retention of title
9.1 The fee is due immediately upon receipt of the invoice without any deductions unless special payment terms are agreed in writing on a case-by-case basis. The same shall apply to all cash and other expenses charged. The Agency shall retain title to the goods delivered by it until full payment of the fee, including all ancillary liabilities.
9.2 In the case of payment default of the Customer, statutory default interest at the rate applicable to business-to-business transactions will be charged. In the case of default, the Customer also undertakes to reimburse the Agency for the dunning and collection charges incurred to the extent necessary for the appropriate pursuit of the claim. In any case, this shall include the costs of two dunning letters at the market fee of currently at least EUR 20 per letter plus those of one dunning letter from a lawyer who has been instructed to collect the outstanding receivables. Assertion of further rights and claims shall remain unaffected.
9.3 If the Customer is in default of payment, the Agency may demand immediate payment for services or partial services rendered under different contracts concluded with the Customer.
9.4 Furthermore, the Agency is not obliged to render other services until payment of the amount outstanding (right to withhold services). The obligation to pay the fees shall not be affected.
9.5 If installment payment has been agreed upon, the Agency reserves the right to demand immediate payment of the total debt outstanding if installments or ancillary claims are not paid in time (acceleration clause).
9.6 The Customer shall not be entitled to set off the Agency’s claims against his claims unless the Agency has recognized the Customer’s claim in writing or ascertained by the court.
10. Title and copyright
10.1 The Agency shall retain title to all services of the Agency, including services in connection with presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final drawings, concepts, negatives, slides), including parts thereof, as well as the individual workpieces and original designs and the Agency may demand at any time, in particular in the case of termination of the contractual relationship, that they be returned to it. By paying the fees, the Customer shall acquire the right to use the services for the agreed-upon purpose. Unless otherwise agreed upon, the Customer shall use the Agency’s services exclusively in Austria. Acquisition of rights to use and exploit the Agency’s services shall, in any case, be subject to full payment of the fees charged by the Agency for the same. If the Customer uses the Agency’s services before that time, such use shall be based on a loan relationship that may be revoked.
10.2 Modifications and/or editing of services of the Agency, including but not limited to the further development of the same by the Customer or third parties working for the Customer, shall only be permitted with the express consent of the Agency and, to the extent that services are protected by copyright, of the author—the delivery of all so-called. “Open files” (especially 3D data) are thus not part of the contract. The agency is not obliged to deliver.
10.3 Use of the Agency’s services beyond the originally agreed purpose and scope of use shall be subject to the Agency’s consent, irrespective of whether such service is protected by copyright. In consideration thereof, the Agency and the author shall be entitled to a separate reasonable fee.
10.4 The Customer shall be liable to the Agency for any unlawful use in the amount of twice the reasonable fees for such use.
11. Identification marks
11.1 The Agency shall be entitled to refer to the Agency and the author, if applicable, on all advertising means and in any advertising and promotion measures without the Customer being entitled to any payment in this respect.
11.2 The Agency shall be entitled to refer to its current or former business relationship with the Customer in its own advertising media, including but not limited to its website, by referring to the Customer’s business name and business logo, with the Customer having the right to revoke his consent in writing at any time.
12. Warranty
12.1 The Customer shall notify any defects immediately and, in any case, within eight days of delivery/provision of the service by the Agency and hidden defects not later than eight days after they were identified in writing, including a description of the defect; otherwise, the service shall be deemed accepted. In that case, the assertion of any warranty claims or claims for damages and the right to assert claims due to mistake shall be excluded.
12.2 In the case of a justified and timely notification of defects, the Customer shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall repair the defects within a reasonable period, and the Customer shall enable the Agency to take all measures necessary to examine and repair the defects. The Agency shall be entitled to refuse service improvement if such improvement is impossible or if the Agency were to incur disproportionately high costs. In that case, the Customer shall be entitled to cancel the contract or get a fee reduction as provided by law. In the case of improvement, the Customer shall send the defective (physical) item at his cost.
12.3 The Customer shall also be obliged to examine the service for its lawfulness, including, but not limited to, competition law, trademark law, copyright law, and administrative law. The Agency is obliged only to roughly examine lawfulness. In the case of slight negligence or after it has fulfilled its duty to warn the Customer, if any, the Agency shall not be liable for the lawfulness of the contents if they were advised or accepted by the Customer.
12.4 The warranty period shall be six months as of delivery/service. The right of recourse to the Agency as defined in Section 933 b (1) AGBG shall be forfeited one year after delivery/service. The Customer shall not be entitled to withhold payments based on complaints. The presumption rule [Vermutungsregel] of Section 924 AGBG shall be excluded.
13. Liability and product liability
13.1 In cases of slight negligence, liability of the Agency and its employees, contractors or other agents [translator’s note: Erfüllungsgehilfen as defined by Section 1313a AGBG] (“People”) for damage to property or financial loss suffered by the Customer shall be excluded, be it indirect or direct damage, lost profit or consequential damage resulting from a defect, damage due to default, impossibility, breach of obligation, culpa in contrahendo or due to defective or incomplete performance. The harmed party shall have to prove gross negligence. To the extent that the Agency’s liability is excluded or limited, this shall also apply to the personal liability of its People.
13.2 Any liability of the Agency for claims asserted vis-à-vis the Customer on the ground of services rendered by the Agency (e.g., advertising and promotion measures) shall be expressly excluded, provided that the Agency complied with its duty to inform or if it was unable to see such a duty, even due to slight negligence. The Agency shall, in particular, not be liable for costs of legal proceedings, lawyer’s fees of the Customer, or costs of publication of judgments or for claims for damages, if any, or other claims of third parties; the Customer shall indemnify and hold harmless the Agency in this respect.
13.3 The Customer’s claims for damages shall be forfeited six months after knowledge of the damage and, in any case, three years after the Agency’s infringement. Claims for damages shall be limited to the net contract value.
14. Data protection (visual emphasis according to court rulings)
The Customer agrees that his data, namely name, occupation, Business Register Number, powers to represent the company, contact person, business address and other addresses of the Customer, phone number, e-mail address, bank details, VAT number may be collected, stored and processed electronically for the performance of the contract and support of the Customer and to refer to the current of former business relationship with the Customer.
Such consent may be revoked at any time in writing via e-mail or letter to the contact details stated in the header of these GTCs.
15. Applicable law
The Agreement and all mutual rights and duties resulting therefrom, as well as any claims between the Agency and the Customer, shall be subject to Austrian substantive law, with its conflicts of laws rules and UN Sales Law excluded.
16. Place of performance and place of jurisdiction
16.1 The place of performance shall be the Agency’s registered office. If goods are shipped, the risk shall pass to the Customer once the Agency has delivered the goods to the carrier chosen by it.
16.2 The agreed place of jurisdiction for all legal disputes arising between the Agency and Customer in connection with this contractual relationship shall be the court having jurisdiction over the subject matter and the Agency’s registered office. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at his general place of jurisdiction.
16.3 If only the masculine form is used herein for describing natural persons, it shall equally refer to women and men. The respective gender-specific form shall be used if a specific person is referred to.
