GTCs

General Terms and Conditions for Agency Services, implemented by owl lab e.U. Mag. (FH) Anja Herberth.

1. scope & validity

1.1. owl lab e.U. Mag. (FH) Anja Herbert, with registered office in Anton Gotschgasse 7, 3002 Purkersdorf – hereinafter referred to as the Agency – provides its services exclusively on the basis of these General Terms and Conditions.

These shall also apply to all future business relations, even if no express reference is made to them.

1.2. The version valid at the time of the conclusion of the contract shall be authoritative in each case. Deviations from these as well as other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.

1.3. Subsidiary agreements, reservations, amendments or supplements to these General Terms and Conditions of Business must be made in writing in order to be valid; this also applies to any deviation from the written form requirement.

1.4. Terms and conditions of the contractual partner that are contrary to or deviate from these terms and conditions shall only become effective, even if they are known, if they are expressly acknowledged by the agency in writing.

1.5. Should individual provisions of these General Terms and Conditions of Business be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and purpose.

2. conclusion of contract

2.1. The basis for the conclusion of the contract is the respective offer of the agency or the order of the customer, in which the scope of services and the remuneration are specified. The offers of the agency are subject to change and non-binding.

2.2. If the customer places an order, he is bound to it for two weeks from its receipt by the agency. The contract is concluded by the acceptance of the order by the agency. Acceptance must be made in writing (e.g. by order confirmation), unless the Agency indicates beyond doubt (e.g. by acting on the basis of the order) that it accepts the order.

3. scope of services, order processing and customer’s duty to cooperate

3.1. The scope of the services to be provided results from the customer’s order or the service description or the information in the contract. Subsequent changes to the content of the service must be made in writing.

By paying the fee, the customer acquires the right of use for the agreed purpose. However, in the absence of any agreement to the contrary, the Customer may use the Agency’s services exclusively in Austria. The acquisition of rights of use and exploitation of services provided by the Agency requires in any case the full payment of the fees charged by the Agency for such services. If the customer already uses the services of the agency before this point in time, this use is based on a loan relationship that can be revoked at any time.

3.2 All proposals, descriptions and contents contained in conception, manuscripts and presentations shall remain – in their full scope and content irrespective of the wording – with copyright and right of use with Mag. (FH) Anja Herberth, even if a fee was paid for the presentation. The concept fee is to be understood as a pure expense fee, but not as compensation for the copyrights and rights of use. The transfer of all documents, in whole or in part, as well as the publication, duplication, distribution, reproduction or other exploitation of the concepts, proposals, solutions and ideas presented is not permitted without the prior consent of Mag. (FH) Anja Herberth. If the presented concepts are not used, owl lab e.U. Mag. (FH) Anja Herberth is entitled to use them otherwise.

3.3 All services of the Agency shall be checked by the Customer and released within three days. If they are not released in time, they shall be deemed approved by the customer.

3.4 The Customer shall immediately provide the Agency with all information and documents required for the performance of the service. He shall inform it of all events that are of importance for the execution of the order, even if these circumstances only arise during the execution, so that work does not have to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.

3.5 The Customer shall furthermore be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any existing copyrights, trademark rights, personal rights, trademark rights or other rights of third parties. In particular, the customer is liable for false or incorrect information provided to the agency in the course of press activities. The Agency shall not be liable for any infringement of such rights. If a claim is made against the Agency due to such an infringement, the Customer shall indemnify and hold the Agency harmless; the Customer shall compensate the Agency for all disadvantages incurred by the Agency due to a claim made by a third party.

The Customer expressly warrants the accuracy of the information and documents provided by him and indemnifies and holds the Agency harmless in this respect; the Customer shall in particular reimburse the Agency for all additional costs incurred by the latter due to the incorrect information and/or documents.

3.6. Do not share with us any information or files that contain a virus or other malicious software. We shall not be liable for any consequences resulting from sending damaged information and files; the Customer shall in particular reimburse the Agency for any additional costs incurred by the latter due to any malware.3.7. Changes or adaptations of services of the Agency, such as in particular their further development by the Customer or by third parties working for the Customer, are only permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author. The surrender of all so-called. “Open files” is thus expressly not part of the contract. The agency is not obliged to surrender. I.e. without contractual assignment of the rights of use also for “electronic works”, the client has no legal claim to them.

3.8. For the use of services of the Agency that goes beyond the originally agreed purpose and scope of use, the consent of the Agency is required – regardless of whether this service is protected by copyright. The agency and the author shall be entitled to a separate appropriate remuneration for this.

3.9. For the use of the Agency’s services or advertising materials for which the Agency has developed conceptual or design templates, the Agency’s consent shall also be required after the expiry of the Agency Agreement, irrespective of whether this service is protected by copyright or not.

3.10. For uses according to par. 7. the agency is entitled to the 1. year after the end of the contract a claim to the full agency remuneration agreed in the expired contract. At 2. respectively 3. year after the expiry of the contract only half or one quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.

3.11. The Customer shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.

4. third-party services / commissioning of third parties

4.1. The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of third parties for the performance of services under the contract and/or to substitute such services (“procurer”).

4.2. The commissioning of errand assistants takes place either in the own name or in the name of the customer, in any case however on account of the customer.

4.3. The Agency will carefully select agents and ensure that they have the required professional qualifications.

4.4. The customer shall enter into obligations to third parties that have been made known to the customer and that extend beyond the term of the contract. This also expressly applies in the event of termination of the agency agreement for good cause.

4.5. Especially in times of high inflation and material prices, we ask you to pay very close attention to the validity of prices mentioned in the offers. Daily prices now apply to raw materials such as paper or productions such as roll-ups.

5. dates

5.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be deemed approximate and non-binding. Binding appointments are to be recorded in writing or confirmed by the agency in writing.

5.2. If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.

5.3. If the Agency is in default, the Customer may only withdraw from the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly. The period begins with the receipt of the reminder letter by the agency. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.

6. withdrawal from the contract

6.1. The agency is entitled to dissolve the contract for important reasons with immediate effect. Good cause shall be deemed to exist in particular if

• 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 being set;

• the customer continues, despite a written warning with a grace period of 14 days, to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate.

• there are justified concerns about the creditworthiness of the customer and the customer does not make advance payments at the request of the agency or provide suitable security prior to the agency’s performance.

  6.2. The customer is entitled to dissolve the contract for important reasons without setting a grace period. Good cause shall be deemed to exist in particular if the Agency continues to violate material provisions of this Agreement despite a written warning with a reasonable grace period of at least 14 days to remedy the violation.

7. fee

7.1. Unless otherwise agreed, the Agency’s fee claim arises for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments to cover its expenses. In the case of an order volume that extends over a longer period of time, the agency is entitled to issue interim or advance invoices or to call for payments on account.

7.2. The fee is understood to be a net fee plus VAT at the statutory rate. In the absence of an agreement in the individual case, the Agency shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law in the amount customary in the market.

7.3. All services provided by the agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Customer.

7.4. Cost estimates of the agency are not binding. If it is foreseeable that the actual costs will exceed those estimated by the Agency in writing by more than 15%, the Agency will inform the Customer of the higher costs. The cost overrun shall be 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 discloses more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the Client from the outset.

7.5. If the customer unilaterally changes or cancels work commissioned without involving the agency – without prejudice to the ongoing other support provided by the agency – the customer shall compensate the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of the Agency, the Customer shall furthermore reimburse the Agency for the entire fee agreed for this order (commission), whereby the imputation remuneration of § 1168 AGBG shall be excluded.

Furthermore, the Agency shall be indemnified and held harmless with respect to any claims of third parties, in particular contractors of the Agency. Upon payment of the fee, the customer does not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed are to be returned to the agency without delay.

8. payment

8.1. 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 charging on of all cash expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration including all ancillary liabilities.

8.2. In the event of default in payment by the customer, the statutory default interest 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 any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal action. In any case, this shall include the costs of two reminders in the customary 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.

8.3. In the event of the Customer’s default in payment, the Agency may declare all services and partial services rendered under other contracts concluded with the Customer immediately due and payable.

8.4. Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay remuneration remains unaffected.

8.5. If payment in installments has been agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of term).

8.6. The customer is not entitled to set off his own claims against claims of the agency, unless the customer’s claim has been acknowledged by the agency in writing or has been established by a court of law.

9. presentations

If the potential client has already invited the agency to prepare a concept in advance and the agency complies with this invitation before the main contract is concluded, the following regulation shall apply:

9.1. Already through 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 GTC.

9.2. The potential customer acknowledges that the agency already provides cost-intensive preliminary services with the concept development, although he has not yet assumed any service obligations himself. The Agency shall be entitled to an appropriate fee for participation in presentations, which, in the absence of an agreement, shall at least cover the entire personnel and material expenses of the Agency for the presentation as well as the costs of all external services. With the payment of the presentation fee, the customer does not acquire any exploitation and usage rights to the presented services.

9.3. The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential customer is not allowed to use and edit these parts without the agency’s consent already due to the copyright law.

9.4. The concept also contains ideas relevant to advertising and communication that do not reach the level of a work and thus 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 later produced and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic character. In particular, advertising slogans and messages, (advertising) texts, graphics and illustrations, advertising materials, etc., shall be deemed to be an idea within the meaning of this agreement, even if they do not reach the level of a work.

9.5. The potential customer undertakes to refrain from commercially exploiting or having commercially exploited or using or having used these creative advertising ideas presented by the agency within the framework of the concept outside the corrective of a main contract to be concluded at a later date.

9.6. If the potential customer is of the opinion that ideas were presented to him by the agency, which he had already come up with before the presentation, he shall notify the agency of this within 14 days after the day of the presentation by e-mail, citing evidence that allows a temporal allocation.

9.7. In the opposite case, the contracting parties shall assume that the agency has presented the potential customer with an idea that is new to him. If the idea is used by the client, it can be assumed that the agency became meritorious in the process.

9.8. The potential customer may release himself from his obligations under this point by paying a reasonable compensation plus 20% VAT. The relief shall not take effect until the Agency has received payment of the indemnity in full.

10. property right and copyright protection

10.1. All services of the agency, like construction of the distributors or like those from presentations (e.g. suggestions, ideas & concepts, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), also individual parts from it, remain just like the individual workpieces and draft originals in the property of the agency and can be reclaimed by the agency at any time – in particular with termination of the contractual relationship. By paying the fee, the customer only acquires the right of use (including reproduction) for the agreed purpose and to the agreed extent of use.

10.2. In the absence of any agreement to the contrary with the Agency, the Customer may only use the Agency’s services itself, exclusively in Austria and only for the duration of the Agency Agreement. The acquisition of rights of use and exploitation of services provided by the Agency requires in any case the full payment of the fees charged by the Agency for such services.

11. marking

11.1. The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising materials and in all advertising measures, without the Customer being entitled to any remuneration for this.

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 business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo.

12. social media channels

Before placing the order, the agency expressly points out to the customer 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. Accordingly, the providers are not obliged to forward content and information to the users. There is therefore a risk, which cannot be calculated by the agency, that advertisements and appearances may be removed without cause.

In the case of a complaint from another user, the providers will grant the possibility of a counterstatement, but even in this case the content will be removed immediately. In this case, the restoration of the original, lawful state may take some time. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the order of the customer on them.

By placing an order, the Customer expressly acknowledges that these Terms of Use (co-)determine the rights and obligations of any contractual relationship. The Agency intends to execute the Client’s order to the best of its ability and to comply with the guidelines of “Social Media Channels”. However, due to the currently valid terms of use and the simple possibility of each user to claim infringements and thus achieve a removal of the content, the agency cannot guarantee that the commissioned campaign is also retrievable at all times.

13 Warranty and compensation

13.1. The customer shall assert and substantiate any complaints in writing without delay, but in any case within eight days of performance by the agency. In the case of justified and timely complaints, the customer is only entitled to the right to improvement or replacement of the service by the agency.

13.2. It is the responsibility of the client to check the service for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The agency is only obligated to perform a rough check of legal admissibility. The Agency shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the Customer, if such content has been specified or approved by the Customer.

13.3. In case of justified notice of defects, the defects shall be remedied within a reasonable period of time, and the Customer shall enable the Agency to take all measures necessary to investigate and remedy the defects. The Agency is entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for the Agency.

13.4. The reversal of the burden of proof according to § 924 ABGB at the expense of the agency is excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect must be proven by the customer.

13.5. Claims for damages by the customer, in particular due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential harm caused by a defect or tortious acts are excluded, unless they are based on intent or gross negligence on the part of the agency.

13.6. The warranty period is six months from delivery/service. The right of recourse against the agency according to § 933b Abs 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.

13.7. Claims for damages shall be assessed at the amount of the order value.

14. liability

14.1. The Agency shall perform the work assigned to it in compliance with generally accepted legal principles and shall inform the Customer in good time of any risks that are apparent to it. Any liability of the Agency for claims made against the Customer on the basis of the advertising and communication measure (the use of a trademark) is expressly excluded if the Agency has fulfilled its obligation to inform the Customer; in particular, the Agency shall not be liable for legal costs, the Customer’s own legal costs or costs of judgment publications, or for any claims for damages or similar claims by third parties.

14.2. The agency is liable within the scope of the legal regulations only for damages, if intent or gross negligence can be proven. Liability for slight negligence is excluded. The existence of gross negligence must be proven by the injured party.

14.3. In cases of slight negligence, liability of the Agency and those of its employees, contractors or other vicarious agents (“people”) for property damage or financial loss of the Customer is excluded, 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, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. As far as the liability of the agency is excluded or limited, this also applies to the personal liability of its “people”.

14.4. 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 provide information or if such obligation was not apparent to the Agency, whereby slight negligence shall not be prejudicial. In particular, the Agency shall not be liable for legal costs, the Customer’s own attorney’s fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; the Customer shall indemnify and hold the Agency harmless in this respect.

14.5. Claims for damages by the customer expire six months after knowledge of the damage; in any case, however, after three years from the infringing act of the agency. Claims for damages are limited to the net order value.

15 Applicable law

The legal relationship between the Customer and the Agency shall be governed exclusively by Austrian law, to the exclusion of international conflict of law rules. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

16 Place of performance and jurisdiction

16.1. The place of performance is the registered office of the agency.

16.2. The place of jurisdiction for all disputes arising directly between the Agency and the Customer shall be the Austrian court with local and subject-matter jurisdiction for the Agency’s registered office.

Purkersdorf, September 2023