OF BE-OH MARKETING GMBH, SACHSENGASSE 81A, 6465 NASSEREITH, FN 444812 K
1. Validity, conclusion of contract
- 1.1. Be-oh Marketing GmbH provides its services exclusively on the base of the following general terms and conditions (GTC). These apply to all legal relationships between the agency and the customer, even if no express reference is made to them. The terms and conditions are only applicable to legal relationships with entrepreneurs, i.e. B2B.
- 1.2 The version valid at the time of the conclusion of the contract is decisive. Deviations from these and other supplementary agreements with the customer are only effective if they are 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 otherwise expressly agreed in writing in individual cases. The agency expressly rejects the customer’s terms and conditions. A further contradiction to the customer’s terms and conditions by the agency is not required.
- 1.4 Changes to the terms and conditions are announced to the customer and are deemed to have been agreed if the customer does not object to the changed terms and conditions in writing within 14 days; The customer is expressly informed of the importance of silence in the notification.
- 1.5 Should individual provisions of these General Terms and Conditions be ineffective, this shall not affect the binding force of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to the meaning and purpose.
- 1.6 The agency’s offers are subject to change and non-binding.
2. Social media channels
3. Concept and idea protection
If the potential customer has already invited the agency in advance to create a concept and the agency complies with this invitation before the main contract is concluded, the following rule applies:
- 3.1 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.
- 3.2 The potential customer acknowledges that the agency is already providing cost-intensive preliminary work with the concept development, although it has not yet assumed any performance obligations.
- 3.3 The concept, in its linguistic and graphic parts, is subject to the protection of copyright law as far as it reaches this level. A use and processing of these parts without the consent of the agency is not permitted to the potential customer due to the copyright law.
- 3.4 The concept also contains advertising-relevant ideas that are not as high as possible 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 a spark of everything that comes up later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they are not as high as possible.
- 3.5 The potential customer undertakes to refrain from using 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 later economically or to have them used or to use or have used.
- 3.6 If the potential customer is of the opinion that the agency has presented ideas to him 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 e-mail with evidence that allow a time allocation to be announced.
- 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.
- 3.8 The potential customer can exempt himself from his obligations under this point by paying appropriate compensation plus 20% sales tax. The exemption does not apply until the agency has received full payment of the compensation.
4. Scope of services, order processing and the customer’s obligation to cooperate
- 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 protocol (“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 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 approved by him within three working days of receipt by the customer. After this period has elapsed without feedback from the customer, they are deemed to have been approved by the customer.
- 4.3 The customer will make all information and documents available to the agency in a timely and complete manner that are necessary for the provision of the service. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expense that arises from the fact that work has to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
- 4.4 The customer is also obliged to check the documents (photos, logos, etc.) made available for the execution of the order for any copyrights, trademarks, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of Rights of third parties and can therefore be used for the intended purpose. The agency is liable in the case of simple negligence or after fulfilling its warning obligation – at least in the internal relationship with the customer – not due to a violation of such third party rights through the documents provided. If the agency is called upon by a third party due to such a violation of the law, the customer shall hold the agency harmless and harmless; he has to reimburse her for all disadvantages that she incurs as a result of third-party claims, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties. For this purpose, the customer provides the agency with all documents without being requested to do so.
5. External services / commissioning third parties
- 5.1 The agency is entitled at its own discretion to perform the service itself, to use competent third parties as vicarious agents for the provision of contractual services and / or to substitute such services (“external service”).
- 5.2 The commissioning of third parties in the context of an external service takes place either in the customer’s own name or in the name of the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
- 5.3 The customer has to enter into obligations towards third parties that go beyond the term of the contract. This also applies expressly in the event that the agency contract is terminated for an important reason.
- 6.1 Unless expressly agreed as binding, the specified delivery or service deadlines are only approximate and non-binding. Binding appointments must be made in writing or confirmed in writing by the agency.
- 6.2 If the delivery / service of the agency is delayed for reasons for which it is not responsible, such as events of force violence and other unforeseeable events that cannot be prevented by reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and are extended Deadlines accordingly. If such delays last 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 only withdraw from the contract after giving the agency a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of evidence of intent or gross negligence.
7. Early termination
- 7.1 The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
- a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;
- b) the customer continues to violate essential obligations from 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 justified concerns about the creditworthiness of the customer and the customer neither makes advance payments at the request of the agency nor provides a suitable security before the agency provides;
- 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 performed. The agency is entitled to request advances to cover its expenses. From an order volume with an (annual) budget of € …………… .., or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to call up 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 in the amount customary in the market for the services provided and the transfer of the rights of use under copyright and trademark law.
- 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 those estimated in writing by the agency by more than 15%, 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 notification and at the same time announces cheaper alternatives. If the costs are exceeded by up to 15%, separate notification is not required. This overrun of the cost estimate is deemed to have been approved by the client from the outset.
- 8.5 If the customer unilaterally changes or interrupts work commissioned without the agency’s involvement – without prejudice to other ongoing support provided by the agency – he has to reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not justified by a grossly negligent or willful breach of duty by the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the crediting fee of § 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 that has already been performed; Concepts, drafts and other documents that have not been implemented are to be returned to the agency immediately.
9. Payment, retention of title
- 9.1 The fee is due for payment immediately upon receipt of the invoice and without any deductions, unless special terms of payment have been agreed in writing in individual cases. This also applies to the charging 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 liabilities.
- 9.2 In the event of default in payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the reminder 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 customary market amount of currently at least € 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.
- 9.3 In the event of default in payment by the customer, the agency can immediately make all services and partial services due within the framework 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 remuneration 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 additional claims (loss of deadline).
- 9.6 The customer is not entitled to offset his own claims against claims of the agency, unless the customer’s claim has been recognized in writing by the agency or has been determined by a court.
10. Ownership and Copyright
- 10.1 All services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and draft originals, remain the property of the agency and can be reclaimed by the agency at any time – in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the agency’s services in Austria. The acquisition of usage and exploitation rights to the agency’s services always requires full payment of the fees charged by the agency. If the customer uses the agency’s services before this point in time, this use is based on a loan relationship that can be revoked at any time.
- 10.2 Changes or processing of services of the agency, in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and – insofar as the services are protected by copyright – the author.
- 10.3 For the use of services of the agency that go 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. The agency and the author are entitled to separate appropriate remuneration for this.
- 10.4 For the use of the agency’s services or advertising material for which the agency has developed conceptual or creative templates, the agency’s consent is also required after the agency contract has expired, regardless of whether this service is protected by copyright or not.
- 10.5 In the first year after the end of the contract, the agency is entitled to the full agency fee agreed in the expired contract for uses according to Paragraph 4. In the 2nd or 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.
- 10.6 The customer is liable to the agency for any unlawful use in double the amount of the fee appropriate for this use.
- 11.1 The agency is entitled to refer to the agency and, if necessary, to the author on all advertising material and in all advertising measures, without the customer being entitled to any claim for payment.
- 11.2 Subject to the written revocation of the customer, which is possible at any time, the agency is entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).
- 12.1 The customer has to report any defects immediately, in any case within eight days after delivery / service by the agency, hidden defects within eight days after detection of the same, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and compensation claims as well as the right to avoid errors due to defects are excluded.
- 12.2 In the case of justified and timely notification of defects, the customer has the right to improve or exchange the delivery / service by the agency. The agency will remedy the deficiencies within a reasonable period of time, whereby the customer enables the agency to take all measures necessary to investigate and remedy the deficiencies. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of improvement, it is the responsibility of the client to transfer the defective (physical) item at his own expense.
- 12.3 It is also the responsibility of the client to check the performance for its legal, in particular competition, trademark, copyright and administrative permissibility. The agency is only obliged to carry out a rough check of the legal admissibility. In the event of slight negligence or after fulfilling a possible warning obligation to the customer, the agency is not liable for the legal admissibility of content if this has been specified or approved by the customer.
- 12.4 The warranty period is six months from delivery / service. The right to recourse against the agency in accordance with Section 933b (1) ABGB expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of § 924 ABGB is excluded.
13. Liability and Product Liability
- 13.1 In cases of slight negligence, liability of the agency and that of its employees, contractors or other vicarious agents (“people”) for property damage or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, lost profit or consequential damage caused by defects Delay, impossibility, positive breach of contract, negligence when concluding the contract, 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 on the part of the agency for claims made against the customer on the basis of the services provided by the agency (e.g. advertising measures) is expressly excluded if the agency has complied with its obligation to notify or if it was not aware of any such obligation, whereby slight negligence does not hurt. In particular, the agency is not liable for legal costs, the customer’s own legal costs or the costs of the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer has to indemnify and hold harmless the agency in this regard.
- 13.3 Claims for damages by the customer expire six months after knowledge of the damage; in any case, after three years from the agency’s act of infringement. Claims for damages are limited in amount to the net order value.
14. Data protection
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 data, UID number) for the purpose of fulfilling the contract and supporting the customer as well as for our own advertising purposes, e.g. for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of pointing out the existing or previous business relationship with the customer (reference), stored and processed.
The client consents to electronic mail being sent to him for advertising purposes until further notice.
This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details given in the head of the General Terms and Conditions.
15. Applicable 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 norms and to the exclusion of the UN sales law.
16. Place of performance and jurisdiction
- 16.1 The place of performance is the seat of the agency. In the case of dispatch, the risk is transferred to the customer as soon as the agency has handed over the goods to the transport company chosen by it.
- 16.2 The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship is agreed to be the competent court for the agency’s headquarters. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction.
- 16.3 Insofar as designations relating to natural persons are only given in masculine form in this contract, they refer to women and men in the same way. When applying the designation to certain natural persons, the gender-specific form must be used.
Additional information on the general terms and conditions for advertising agencies
- 1. The “General Terms and Conditions” (GTC) published by the Association for Advertising & Market Communication of the Austrian Chamber of Commerce are only a sample which is intended to provide information and suggestions. It is therefore by no means guaranteed that the model terms and conditions will be applied in all details by every communication company in the proposed form! Like every sample, the general terms and conditions can be supplemented or adapted according to the specific requirements of the respective company. For example, if a company not only provides services but also supplies goods (e.g. software), the terms and conditions will most likely contain a retention of title clause.
- 2. General terms and conditions are pre-formulated contractual clauses that one party submits to the other before entering into a contract. However, they are not automatically included in the contract and cannot be imposed on the contractual partner! They only apply if they have been contractually agreed. The contractual partner or client must therefore agree to the terms and conditions used by his supplier. Consent can also be conclusively given, for example if the client does not contradict the terms and conditions (which, for example, were attached to the offer).
In accordance with the prevailing case law, the data protection provisions must be visually highlighted in the terms and conditions. The professional association for advertising and market communication recommends formatting these text passages in “bold”.
- 3. Consent to the terms and conditions by the client can only be assumed if the client even knew that his supplier was using the terms and conditions. As a rule, it is sufficient if the contractor draws the client’s attention to the terms and conditions – in writing or orally. However, the notice must be clear; Small print and barely legible instructions on the back of an offer are not sufficient. In the case of a contract offer on the Internet, a button or a link can be used to refer to the terms and conditions.
- 4. The mere reference to general terms and conditions is not sufficient. The client must have demonstrably had the opportunity to inspect the terms and conditions before the conclusion of the contract! It is irrelevant whether or not he actually sees it. In the case of an offer on the Internet, the contractual partner should also be able to print out or save the terms and conditions.
- 5. If reference is only made to the terms and conditions after the contract has been concluded (e.g. on a delivery note or an invoice), this is too late: the general terms and conditions are then not part of the contract.
- 6. If both contractual partners use terms and conditions that contradict each other in some points, there is no agreement of intent, so that the contradicting terms and conditions do not become part of the contract. If the contradicting terms and conditions relate to important points in the contract, the entire contract may not be concluded in individual cases. It is therefore urgently advisable that the contractual partners reach an early agreement regarding the contradicting provisions of their respective terms and conditions.
- 7. A complete exclusion of liability, an exclusion of the warranty in the event of inadequate service provision or similar one-sided clauses grossly disadvantage the other contractual partner and are therefore inadmissible i. S. of § 879 Abs. 3 ABGB. If there are any doubts about the legal harmlessness of these terms and conditions, it is advisable to seek professional legal advice.
- 8. In the case of a public invitation to tender, only the client specifies the terms and conditions. If, in the course of a public tender, an entrepreneur offers terms and conditions other than those required by the client, the entrepreneur does not offer in accordance with the tender, which is usually an irreparable defect and leads to the entrepreneur’s departure.