If the potential customer has already invited the agency to create a concept and the agency accepts this invitation before the conclusion of the main contract, the following regulation applies:
to the protection of copyright law in its linguistic and graphic parts, insofar as these reach work height . The potential customer is not permitted to use and edit these parts without the consent of the agency, if only because of the copyright law.
3.4 The concept also contains advertising - relevant ideas that do not reach any work height 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 igniting spark of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected that are unique and give the marketing strategy its characteristic character . In particular, advertising keywords , advertising texts, graphics and illustrations, advertising material, etc. are regarded as ideas within the meaning of this agreement , even if they do not reach a work height .
3.5 The potential customer undertakes to refrain from commercially exploiting these creative advertising ideas presented by the agency within the framework of the concept, outside of the corrective of a main contract to be concluded at a later date, or have them exploited or used or to let use.
3.6 If the potential customer is of the opinion that the agency presented him with ideas that he had already come up with before the presentation , he must inform the agency of this within 14 days of the day of the presentation by email -Mail citing evidence that allows a chronological assignment to announce.
3.7 In the opposite case, the contracting 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 can be assumed that the agency was meritorious.
customer can free himself from his obligations under this point by paying reasonable compensation plus 20 % sales tax. The exemption only occurs after the full payment of the compensation has been received by the agency.
4.1 The scope of the services to be provided results from the service description in the agency contract or any order confirmation by the agency, as well as any briefing minutes ( " offer documents " ). Subsequent changes to the service content require written confirmation by the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
4.2 All services provided by the agency (in particular all preliminary drafts , sketches, final artwork, brush proofs, blueprints , copies , color prints and electronic files) must be checked by the customer and submitted by the customer within five working days of receipt release customers. After this period has elapsed without feedback from the customer, they are deemed to have been approved by the customer.
provide the agency with all information and documents that are required for the provision of the service in a timely and complete manner . He will inform you of all circumstances that are important for the execution of the order, even if they only become known during the execution of the order . The customer bears the expenses incurred as a result of the fact that work has to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information .
4.4 The customer is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights , trademark rights , trademark rights or other rights of third parties ( Rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose . The agency is not liable in the case of slight negligence or after fulfilling its duty to warn - at least in the internal relationship with the customer - for a violation of such rights of third parties through the documents made available . If the agency is sued by a third party because of such an infringement, the customer shall indemnify and hold the agency harmless; he has to compensate her for all disadvantages that arise from claims by third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties . The customer shall make all documents available to the agency without being asked .
7. Premature Dissolution
7.1 The agency is entitled to terminate the contract for important reasons with immediate effect . An important reason exists in particular if
7.2 The customer is entitled to dissolve the contract for important reasons without setting a grace period . An important reason exists 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 of contract.
8.1 Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments to cover its expenses . From an order volume with an ( annual ) budget
of € 5,000 or those that extend over a longer period of time, the agency is entitled to issue interim invoices or advance invoices or to request payments on account.
8.2 The fee is a net fee plus sales tax at the statutory rate . In the absence of an agreement in individual cases, the agency is entitled to a fee at the usual market rate for the services provided and the transfer of the copyright and trademark rights of use .
8.3 All agency services that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency are to be reimbursed by the customer.
8.4 Cost estimates by the agency are non-binding. If it is foreseeable that the actual costs will exceed the agency's written estimate by more than 20% , the agency will inform the customer of the higher costs . The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announce cheaper alternatives . If the costs are exceeded by up to 20%, a separate notification is not required. This cost estimate overrun is deemed to have been approved by the customer from the outset.
unilaterally changes or cancels commissioned work without the agency's involvement - without prejudice to other ongoing support by the agency - he must reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred . If the cancellation is not due to a grossly negligent or intentional breach of duty by the agency , the customer must also reimburse the agency for the entire fee (commission) agreed for this order , whereby the credited fee 1168 AGBG is excluded. Furthermore, the agency is to be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of the agency . By paying the fee, the customer does not acquire any rights of use for work already performed; Concepts, drafts and other documents that have not been implemented are to be returned to the agency without delay.
9. Payment, retention of title
9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction , unless special payment terms have been agreed in writing in individual cases. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all ancillary obligations.
9.2 If the customer is in arrears with payment, the statutory interest on arrears shall apply at the rate applicable to business transactions . Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the dunning and collection costs incurred, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the usual market amount of currently at least € 20 per reminder and a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected .
9.3 If the customer defaults in payment, the agency can demand immediate payment of all services and partial services rendered as part of other contracts concluded with the customer .
9.4 Furthermore, the agency is not obliged to provide further services until the outstanding amount has been settled (right of retention ). The obligation to pay the fee remains unaffected .
9.5 If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline ) .
9.6 The customer is not entitled to offset his own claims against claims of the agency, The customer's claim was recognized in writing by the agency or determined by a court.
10. Ownership and Copyright
to take all necessary measures to investigate and remedy the defect . The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for the agency . In this case, the customer is entitled to the statutory conversion or reduction rights. In the case of improvement, it is up to the client to carry out the transmission of the defective (physical ) item at his own expense .
12.3 It is also the client's responsibility to check the service for its legal admissibility , in particular with regard to competition, trademark, copyright and administrative law . The agency is only obliged to carry out a rough check of legal admissibility . In the event of slight negligence or after fulfilling any obligation to warn the customer, the agency is not liable for the legal admissibility of content if this was specified or approved by the customer.
12.4 The warranty period is six months from delivery/service. The right of recourse against the agency according to § 933b paragraph 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints . The presumption 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”) are not liable for damage to property or financial loss of the customer , regardless of whether it is direct or indirect damage , loss of profit or consequential damage , damage due to delay, impossibility , positive breach of contract, culpa in contrahendo, due to defective or incomplete performance . The injured party has to prove the existence of gross negligence . Insofar as the agency's liability is excluded or limited , this also applies to the personal liability of its “ people ” .
13.2 Any liability of the agency for claims made against the customer on the basis of the service provided by the agency (e.g. advertising measure ) is expressly excluded if the agency has fulfilled its obligation to inform or such f was not recognizable to them, whereby slight negligence does not harm. In particular, the agency is not liable for legal costs, the customer's own legal fees or costs for the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer must indemnify and hold harmless the agency in this regard .
13.3 Claims for damages by the customer lapse six months after knowledge of the damage; but in any case after three years from the infringing action of the agency. Claims for damages are limited to the amount of the net order value.
14. Governing Law
The contract and all mutual rights and obligations derived from it as well as claims between the agency and the customer are subject to Austrian substantive law to the exclusion of its reference standards and to the exclusion of the UN Sales Convention.
15. Place of performance and place of jurisdiction: 6020 Innsbruck, Austria
15.1 The place of fulfillment is the registered office of the agency. In the case of shipping , the risk passes to the customer as soon as the agency has handed over the goods to the carrier chosen by it .
15.2 The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is the competent court for the agency's registered office . Irrespective of this, the agency is entitled to sue the customer at his general place of jurisdiction.
natural persons are only given in the masculine form in this contract , they refer to women and men in the same way. When applying the designation to specific natural persons , the respective gender-specific form is to be used.