of AD AHEAD GmbH.
FN 557060 g
Josef Bauer Straße 1, 3071 Böheimkirchen
1.1 The ADAHEAD GmbH. (hereinafter "Agency") shall provide its servicesexclusively on the basis of the following General Terms and Conditions (GTC).They shall apply to all legal relationships between the Agency and theCustomer, even if they are not expressly referred to. The GTC shall exclusivelyapply to legal transactions with entrepreneurs, i.e. B2B transactions.
1.2 The versionapplicable at the time of conclusion of a contract shall be relevant.Deviations from these GTC and other supplementary agreements with the Customershall only be effective if they have been confirmed by the Agency in writing.
1.3 Terms andconditions of the Customer, if any, shall not be accepted, even if the Agencyknows them, unless expressly agreed otherwise in writing on a case-by-casebasis. The Agency expressly objects to GTC of the Customer. No other objection of the Agency to theCustomer's GTC shall be required.
1.4 The Customer shall be informed aboutamendments to the GTC; they shall be deemed agreed unless the Customer objectsto the amended GTC in writing within 14 days; in the information the Customerwill be expressly informed about the consequence of silence on his part.
1.5 If anyprovisions of these General Terms and Conditions are ineffective, the bindingnature of the remaining provisions and the contracts concluded on the basis ofthe same shall not be affected. The ineffective provision shall be replaced byan effective provision which comes as close as possible to the meaning andpurpose of the ineffective one.
1.6 The Agency's offers shall be subject tochange without notice and non-binding.
Before anorder is placed the Agency expressly points out to the Customer that providersof "social media channels" (e.g. facebook; hereinafter referred to asProviders), in their terms and conditions of use, reserve the right to rejector remove advertisements or promotional appearances for any reason whatsoever.Accordingly, Providers are not obliged to forward content or information tousers. Thus, there is a risk, which cannot be calculated by the Agency, thatadvertisements or promotional appearances are removed for no reason. Althoughin the case of a complaint of a different user Providers do offer anopportunity to reply, the content will be immediately removed also in thatcase. In that case restoring the original, lawful condition may take some time.The Agency works on the basis of the Providers' terms and conditions of use, onwhich it has no influence, and also makes them the basis of Customer orders. Byplacing the order the Customer expressly acknowledges that those terms andconditions of use (co-)determine the rights and duties of a contractualrelationship, if any. The Agency intends to execute the Customer's order to thebest of its knowledge and belief and to comply with the policies of"social media channels". Due to the terms and conditions of use thatare currently applicable and the fact that every user can easily allege aviolation of the law with the aim that contents will be removed, the Agencycannot guarantee that the ordered campaign can be retrieved at any time.
If a potential Customer hasalready invited the Agency beforehand to develop a concept and if the Agencyaccepts this invitation prior to conclusion of the principal contract, thefollowing shall apply:
3.1 By the invitation and acceptance of the invitation by the Agencythe potential Customer and the Agency enter into a contractual relationship("pitching contract"). That contract will also be based on theGTC.
3.2 The potential Customer acknowledges that already by developing aconcept the Agency will render cost-intensive services, even though theCustomer himself has not taken on any performance duties yet.
3.3 To the extent that they reach the level of originality requiredfor copyright protection the linguistic and graphic parts of the concept areprotected by the Austrian Copyright Act [Urheberrechtsgesetz].The potential Customer is not permitted to use or edit those parts without theAgency's consent due to the Austrian Copyright Act alone.
3.4 Furthermore, the concept contains ideas that are relevant to advertising which do not reach the levelof originality required for copyright protection and are thus not protected bythe Austrian Copyright Act. Such ideas are generated at the beginning of every creativeprocess and may be defined as the creative spark for all subsequent workresults and, thus, as the origin of the marketing strategy. Accordingly, thoseelements of the concept are protected which are unique and characterise themarketing strategy. For the purpose of this agreement ideas shall in particularmean advertising slogans, advertising texts, graphics and illustrations,advertising means etc., even if they do not reach the level of originalityrequired for copyright protection.
3.5 The potential Customerundertakes not to exploit or have exploited commercially and/or use or haveused the creative advertising ideas which the Agency presented as part of theconcept in any context other than the corrective of a principal contract to beconcluded at a later time.
3.6 If the potential Customer is of the opinion that the Agencypresented ideas to him which he already had before the presentation, he shallnotify the Agency thereof via e-mail within 14 days of the day of thepresentation and include means of evidence which allow a chronologicalallocation.
3.7 Otherwise the Parties will assume that the Agency has presented anidea to the potential Customer which is new to him. If the Customer uses theidea, it has to be assumed that the Agency received remuneration therefor.
3.8 The potential Customer may be released fromhis duties under this Clause if he pays a reasonable compensation plus 20% VAT.Such release shall become effective only after receipt of the full compensationpayment by the Agency.
4.1 The scopeof the services to be rendered shall be based on the specifications of theAgency Agreement or the Agency's acknowledgment of order, if any, and thebriefing report, if any ("Offer Documents"). Subsequent modificationsof the services shall be subject to the Agency's written confirmation. Whenexecuting the order the Agency shall be free in its discretion within theframework specified by the Customer.
4.2 Allservices of the Agency (including but not limited to all preliminary designs,sketches, final drawings, proofs, blueprints, copies, coloured prints andelectronic files) shall be checked by the Customer and released within threeworking days of receipt by the Customer. If they are not released within thatperiod, they shall be deemed approved by the Customer. After that period hasexpired with no reply from the Customer they shall be deemed accepted by thesame.
4.3 TheCustomer shall make accessible to the Agency completely and in time allinformation and documents required for rendering the service. The Customershall notify the Agency of all circumstances that are relevant to execution ofthe order, even if they become known only in the course of execution of theorder. The Customer shall bear the costs incurred due to the fact that work hasto 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 clearthe documents made available by him for execution of the order (photos, logos,etc.) for potential copyrights, trademark rights, marks or other rights ofthird parties (rights clearance) and guarantees that the documents are freefrom 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 warnthe Customer, the Agency shall not be liable (at least as regards therelationship between the Agency and the Customer) for an infringement of suchrights of third parties by documents made available by the Customer. If theAgency is held liable for an infringement of such rights, the Customer shallindemnify and hold harmless the Agency and shall compensate the Agency for anyand all disadvantages suffered by it due to third-party claims, including costsof reasonable legal representation. The Customer undertakes to support theAgency in defending claims of third parties, if any. For this purpose theCustomer shall provide the Agency with all documents without request.
5.1 The Agencyshall be entitled at its own discretion to render the services itself, toemploy expert third parties as agents [Erfüllungsgehilfenas defined by Section 1313a of the Austrian General Civil Code [ABGB]] and/or to commission a thirdparty to render such services ("External Service").
5.2 Commissioningof third parties in connection with an External Service shall be done either inthe Agency's own name or in the name of the Customer. The Agency shall selectthe relevant third party with care and ensure that it is appropriatelyqualified.
5.3 The Customer shall assume obligationsvis-à-vis third parties which survive the contract. This shall expressly applyalso in the case of termination of the agency contract for cause.
6.1 Unlessexpressly agreed to be binding, delivery or service periods stated shall onlybe approximate and non-binding. Binding agreements on deadlines shall berecorded in writing or confirmed by the Agency in writing.
6.2 If thedelivery/service of the Agency is delayed for reasons for which the Agency isnot responsible, such as, e.g. events of force majeure or other unforeseeableevents that cannot be prevented by reasonable means, the service obligationsshall be suspended for the duration and to the extent of the impediment and thedeadlines shall be extended accordingly. If such delays continue for more thantwo months, the Customer and the Agency shall be entitled to rescind thecontract.
6.3 If the Agency is in default, the Customer mayonly rescind the contract after having granted the Agency a reasonable graceperiod of at least 14 days in writing and after such period has expiredfruitlessly. Claims of the Customer for damages on the ground ofnon-performance or default shall be excluded, unless intent or gross negligencecan be proved.
7.1 The Agencyshall be entitled to terminate the contract for cause with immediate effect.Causes shall include but not be limited to situations where
(a) provisionof a service becomes impossible for reasons for which the Customer isresponsible or is further delayed even though the Customer was granted a graceperiod of 14 days;
(b) the Customercontinues 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 toco-operate, despite a written warning and having been granted a grace period of14 days.
(c) legitimateconcerns exist regarding the Customer's credit standing and, upon the Agency'srequest, the Customer fails to make advance payments or to furnish suitablesecurity prior to provision of the service by the Agency;
7.2 TheCustomer shall be entitled to terminate the contract for cause without havingto grant a grace period. A cause shall be, in particular, where the Agencyrepeatedly violates material provisions of this contract despite a writtenwarning and having been granted a grace period of at least 14 days to remedythe breach of the contract.
8.1 Unlessotherwise agreed the Agency's entitlement to fees shall arise for any specificservice once the same has been rendered. The Agency shall be entitled to askfor advances to cover its expenses. From a contract volume involving a (anannual) budget of EUR ……………… or contracts extending over a prolongedperiod of time, the Agency shall be entitled to render interim accounts orissue advance invoices or demand payments on account.
8.2 The feesshall be stated as net fees plus statutory value added tax. If in a specificcase no agreement on fees has been concluded, the Agency shall be entitled tofees at market rates for the services rendered and for transfer of copyrightsand marks.
8.3 Allservices of the Agency which are not expressly covered by the agreed fees shallbe paid for separately. All cash expenses incurred by the Agency shall bereimbursed by the Customer.
8.4 Costestimates provided by the Agency shall be non-binding. If it becomes clear thatthe actual costs will exceed the Agency's written cost estimate by more than 15per cent, the Agency shall advise the Customer of such higher costs. Theincrease in costs shall be deemed accepted by the Customer if the Customer doesnot object to such increase in writing within three working days of the adviceand states cheaper alternatives at the same time. Cost increases of up to 15per cent shall not have to be advised separately. Such a deviation from thecost estimate shall be deemed accepted by the Customer from the beginning.
8.5 If the Customer unilaterally modifies orcancels work ordered without involving the Agency and notwithstanding otherregular support from the same, the Customer shall pay the Agency for theservices provided by then according to the agreement on fees and shallreimburse all costs incurred. Unless work is cancelled on the ground of abreach of the Agency's duties by gross negligence or wilful intent, theCustomer shall, in addition, pay the Agency the total fee (commission) agreedfor that contract, and the allowance [Anrechnungsvergütung] as defined inSection 1168 of the Austrian Civil Code [ABGB] shall be excluded.Furthermore, the Agency shall be indemnified and held harmless from and againstany third-party claims, in particular of the Agency's contractors. By paymentof the fees the Customer shall acquire no rights to use work already carriedout; concepts, drafts and other documents which were not implemented shallrather be returned to the Agency without delay.
9.1 The feeshall be due for payment immediately upon receipt of the invoice without anydeductions, unless special payment terms are agreed in writing on acase-by-case basis. The same shall apply to all cash and other expensescharged. The Agency shall retain title to the goods delivered by it until fullpayment of the fee including all ancillary liabilities.
9.2 In the caseof payment default of the Customer statutory default interest at the rateapplicable to business-to-business transactions will be charged. In the case ofdefault the Customer also undertakes to reimburse the Agency the dunning andcollection charges incurred to the extent they are necessary for appropriatepursuit of the claim. This shall in any case include the costs of two dunningletters at the market fee of currently at least EUR 20 per letter plus those ofone dunning letter of a lawyer who has been instructed to collect thereceivables outstanding. Assertion of further rights and claims shall remainunaffected.
9.3 If theCustomer is in default of payment, the Agency may call for immediate payment ofservices or partial services rendered under different contracts concluded withthe Customer.
9.4 Furthermore,the Agency is not obliged to render other services until payment of the amountoutstanding (right to withhold services). The obligation to pay the fees shallnot be affected.
9.5 If paymentby instalments has been agreed, the Agency reserves the right to demandimmediate payment of the total debt outstanding if instalments or ancillaryclaims are not paid in time (acceleration clause).
9.6 The Customer shall not be entitled to set offclaims of the Agency against his own claims unless the Customer's claim hasbeen recognised by the Agency in writing or ascertained by court.
10.1 The Agencyshall retain title to all services of the Agency, including services inconnection with presentations (e.g., suggestions, ideas, sketches, preliminarydesigns, scribbles, final drawings, concepts, negatives, slides), includingparts thereof, as well as the individual workpieces and original designs andthe Agency may demand at any time,in particular in the case of termination of the contractual relationship, thatthey be returned to it. By paying the fees the Customer shall acquire the rightto use the services for the designated purpose agreed. Unless otherwise agreedthe Customer shall, however, use the Agency's services exclusively in Austria.Acquisition of rights to use and exploit the Agency's services shall in anycase be subject to full payment of the fees charged by the Agency for the same.If the Customer uses the Agency's services already prior to that time, such useshall be based on a loan relationship that may be revoked at any time.
10.2 Modificationsand/or editing of services of the Agency, including but not limited to furtherdevelopment of the same by the Customer or third parties working for theCustomer, shall only be permitted with the express consent of the Agency and,to the extent that services are protected by copyright, of the author.
10.3 Use of theAgency's services beyond the originally agreed purpose and scope of use shallbe subject to the Agency's consent irrespective of whether such service isprotected by copyright or not. In consideration thereof the Agency and theauthor shall be entitled to a separate reasonable fee.
10.4 Afterexpiration of the Agency Agreement use of services of the Agency and/or advertisingmeans for which the Agency developed concepts or designs shall also be subjectto the Agency's consent irrespective of whether the service is protected bycopyright or not.
10.5 In the firstyear after termination of the contract the Agency shall be entitled to the fullagency fees agreed in the expired contract for any use described in paragraph4. In the second and third year after expiration of the contract the Agencyshall only be entitled to half or one fourth of the consideration agreed in thecontract. From the fourth year after termination of the contract no agency feesshall be payable.
10.6 The Customer shall be liable to the Agency forany unlawful use in the amount of twice the reasonable fees for such use.
11.1 The Agencyshall be entitled to make reference to the Agency and the author, ifapplicable, on all advertising means and in any advertising and promotionmeasures, without the Customer being entitled to any payment in this respect.
11.2 The Agency shall be entitled to make referenceto its current or former business relationship with the Customer on its ownadvertising media, including but not limited to its website, by referring tothe Customer's business name and business logo, with the Customer having theright to revoke his consent in writing at any time.
12.1 The Customershall notify any defects immediately and in any case within eight days ofdelivery/provision of the service by the Agency and hidden defects not laterthan eight days after they were identified in writing including a descriptionof the defect; otherwise the service shall be deemed accepted. In that caseassertion of any warranty claims or claims for damages as well as the right toassert claims on account of mistake shall be excluded.
12.2 In the caseof a justified and timely notification of defects the Customer shall beentitled to improvement or replacement of the delivery/service by the Agency.The Agency shall repair the defects within a reasonable period of time and theCustomer shall enable the Agency to take all measures which are necessary forexamination and repair of the defects. The Agency shall be entitled to refuseimprovement of the service if such improvement is impossible or if the Agencywere to incur disproportionately high costs. In that case the Customer shall beentitled to cancel the contract or get a fee reduction as provided for by law.In the case of improvement the Customer shall send the defective (physical)item at his cost.
12.3 The Customershall also be obliged to examine the service for its lawfulness, including butnot limited to competition law, trademark law, copyright law and administrativelaw. The Agency is obliged only to roughly examine lawfulness. In the case ofslight negligence or after it has fulfilled its duty to warn the Customer, ifany, the Agency shall not be liable for lawfulness of contents if they wereadvised or accepted by the Customer.
12.4 The warranty period shall be six months as ofdelivery/service. The right of recourse to the Agency as defined inSection 933 b (1) ABGB shall beforfeited one year after delivery/service. The Customer shall not be entitledto withhold payments on the ground of complaints. The presumption rule [Vermutungsregel] of Section 924 ABGB shall be excluded.
13.1 In cases of slight negligence liability of theAgency and its employees, contractors or other agents [translator's note: Erfüllungsgehilfen as defined by Section1313a ABGB] ("People") fordamage to property or pecuniary loss suffered by the Customer shall beexcluded, be it indirect or direct damage, lost profit or consequential damageresulting from a defect, damage due to default, impossibility, breach of obligation,culpa in contrahendo or due todefective or incomplete performance. The harmed party shall have to prove grossnegligence. To the extent that the Agency's liability is excluded or limitedthis shall also apply to personal liability of its People.
13.2 Any liability of the Agency for claims assertedvis-à-vis the Customer on the ground of services rendered by the Agency (e.g.advertising and promotion measures) shall be expressly excluded, provided thatthe Agency complied with its duty to inform or if it was unable to see such aduty, even due to slight negligence. The Agency shall, in particular, not beliable for costs of legal proceedings, lawyer's fees of the Customer or costsof publication of judgments or for claims for damages, if any, or other claimsof third parties; the Customer shall indemnify and hold harmless the Agency inthis respect.
13.3 Claims of the Customer fordamages shall be forfeited six months after knowledge of the damage and in anycase three years after the Agency's infringement. Claims for damages shall belimited to the net contract value.
TheAgreement and all mutual rights and duties resulting therefrom as well as anyclaims between the Agency and the Customer shall be subject to Austrian substantivelaw, and its conflicts of laws rules and UN Sales Law shall be excluded.
15.1 The place of performance shallbe the registered office of the Agency. In the case that goods are shipped therisk shall pass to the Customer once the Agency has delivered the goods to thecarrier chosen by it.
15.2 The agreed place of jurisdiction for all legaldisputes arising between the Agency and Customer in connection with thiscontractual relationship shall be the court having jurisdiction over thesubject-matter and the Agency's registered office. Notwithstanding theforegoing the Agency shall be entitled to sue the Customer at his general placeof jurisdiction.
15.3 If only the masculine form is used herein fordescribing natural persons it shall equally refer to women and men. If aspecific person is referred to, the respective gender-specific form shall beused.