Allgemeine Geschäftsbedingungen

ADspace-led GmbH
Erich Kästner Weg 1
2542 Kottingbrunn
office@adspace-led.at
FN 661821 t

1. Validity, Conclusion of Contract

1.1 ADspace-led GmbH (hereinafter referred to as the "Agency") provides its services exclusively on the basis 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 GTC are applicable exclusively to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded shall apply. Deviations from these and other supplementary agreements with the Customer are only effective if confirmed in writing by the Agency.
1.3 Any terms and conditions of the Customer will not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The Agency expressly rejects any GTC of the Customer. A further objection to the customer's general terms and conditions by the agency is not required.
1.4 Changes to the general terms and conditions will be notified to the customer and will be deemed agreed if the customer does not object to the amended general terms and conditions in writing within 14 days; the customer will be expressly informed in the notification of the significance of silence and of the specifically amended clauses. This presumption of consent does not apply to changes to essential service contents and fees.
1.5 Should individual provisions of these general terms and conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision is to be replaced by a valid 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
Before placing an order, the agency expressly informs the client 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. The providers are therefore not obligated to forward content and information to users. Therefore, there is an incalculable risk that advertisements and appearances will be removed without reason. In the event of a complaint from another user, the providers will grant the opportunity for a counterstatement, but even in this case, the content will be removed immediately. Restoring the original, legal status may take some time in this case. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the client's order on them. By placing an order, the client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The agency intends to carry out the client's order to the best of its knowledge and belief and to adhere to the guidelines of "social media channels." However, due to the currently valid terms of use and the easy ability of any user to claim violations of law and thus have content removed, the agency cannot guarantee that the commissioned campaign will be accessible at all times.

3. Concept and Idea Protection
If the potential client has already invited the agency to develop a concept, and the agency accepts this invitation before the main contract is concluded, the following provision applies:
3.1 The invitation and acceptance of the invitation by the agency constitute a contractual relationship between the potential client and the agency ("pitching contract"). This contract is also based on the General Terms and Conditions.
3.2 The potential client acknowledges that the agency is already providing cost-intensive preliminary services by developing the concept, even though the agency has not yet assumed any performance obligations.
3.3 The concept, in its linguistic and graphical elements, is subject to copyright protection, insofar as these reach the level of a work. The potential client is not permitted to use or edit these elements without the agency's consent, based on copyright law alone.
3.4 The concept also contains advertising-relevant ideas that do not reach the level of a work and therefore do not qualify for copyright protection. These ideas are at the beginning of every creative process and can be defined as the igniting spark of all subsequent creations, and thus the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. For the purposes of this agreement, advertising slogans, advertising copy, graphics and illustrations, advertising materials, etc. are considered ideas, even if they do not reach the level of a work.
3.5 The potential client undertakes to refrain from commercially exploiting, having exploited, or using or having used these creative advertising ideas presented by the agency as part of the concept outside the corrective provisions of a main contract to be concluded later.
3.6 If the potential client believes that the agency has presented them with ideas that they had already thought of before the presentation, they must notify the agency of this by email within 14 days of the day of the presentation, citing evidence that allows a chronological assignment.
3.7 Otherwise, the contracting parties assume that the agency has presented the potential client with a new idea. If the client uses the idea, it is to be assumed that the agency has earned credit for doing so.
3.8 The potential customer can be released from its obligations under this point by paying appropriate compensation, calculated on a case-by-case basis, plus 20% VAT. The release only takes effect after the agency has received full payment of the compensation.

4. Scope of services, order processing and customer's duty to cooperate

4.1 The scope of the services to be provided is determined by 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 content of the services 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, proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and released by the customer within three working days of receipt. After this deadline has expired without the customer responding, the documents shall be deemed to have been approved by the customer.
4.3 The customer will provide the agency with all information and documents necessary for the provision of the service in a timely and complete manner. They will inform the agency of all circumstances relevant to the execution of the order, even if these only become known during the execution of the order. The customer shall bear the costs incurred if work has to be repeated or delayed by the agency as a result of the customer's incorrect, incomplete, or subsequently amended information.
4.4 The customer is further obligated to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademarks, branding rights, or other rights of third parties (rights clearance) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of merely slight negligence or after fulfilling its duty to warn, the agency shall not be liable for any infringement of such third-party rights by the documents provided. If a third party asserts a claim against the agency due to such a violation of law, the customer shall indemnify and hold the agency harmless; the customer shall compensate the agency for all disadvantages incurred as a result of such a claim, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims made by third parties. The customer shall provide the agency with all documents for this purpose without being asked to do so.

5. Third-party services / commissioning of third parties

5.1 The agency is entitled, at its own discretion, to perform the service itself, to engage knowledgeable third parties as vicarious agents in the provision of contractual services, and/or to substitute such services ("third-party services").
5.2 The commissioning of third parties for the provision of external services takes place either in the agency's own name or in the name of the customer, the latter after prior notification to the customer. The agency will select this third party carefully and ensure that it has the necessary professional qualifications.
5.3 The customer is responsible for any obligations towards 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 contract for good cause.

6. Deadlines

6.1 Unless expressly agreed as binding, stated delivery or service deadlines are only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by the agency.
6.2 If the agency's delivery/service is delayed for reasons for which it is not responsible, such as force majeure and other unforeseeable events that cannot be avoided by reasonable means, the performance obligations shall be suspended for the duration and extent of the hindrance, 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.
6.3 If the agency is in default, the customer may only withdraw from the contract after having set the agency a reasonable grace period of at least 14 days in writing and this grace period has expired without result. 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.

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 execution of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days;
b) the customer continues to violate material obligations under 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 regarding the customer's creditworthiness and the customer does not make any advance payments or provide suitable security before the agency provides the service at the agency's request;
7.2 The customer is entitled to terminate the contract for important reasons without granting a grace period. An important reason exists in particular if the agency continues to violate material 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. Fees

8.1 Unless otherwise agreed, the agency's fee claim for each individual service arises as soon as it has been rendered. The agency is entitled to request advance payments to cover its expenses. For orders with an (annual) budget of €5,000 or more, or for orders that extend over a longer period, the agency is entitled to issue interim or advance invoices or request payments on account.
8.2 The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee at the customary market rate for the services rendered and for the transfer of copyright and trademark usage rights.
8.3 All services provided by the agency that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency must be reimbursed by the client.
8.4 Cost estimates provided by the agency are non-binding. If it becomes apparent that the actual costs will exceed the agency's written estimate by more than 15%, the agency will notify the client of the higher costs. The cost overrun is deemed to have been approved by the client if the client does not object in writing within three business days of this notification and simultaneously provides more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost overrun is deemed to have been approved by the client from the outset.
8.5 If the customer unilaterally changes or cancels commissioned work without involving the agency - without prejudice to the ongoing other support provided by the agency - the customer must pay the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the cancellation is due to gross negligence or intentional breach of duty on the part of the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the credit payment pursuant to Section 1168 of the AGBG is excluded. Furthermore, the agency must be indemnified and held harmless against any claims from third parties, in particular from the agency's contractors. By paying the fee, the customer does not acquire any rights of use for work already performed; instead, unexecuted 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 and without deduction, unless special payment terms are 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 liabilities.
9.2 In the event of default 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 costs incurred, insofar as they are necessary for appropriate legal action. This shall in any case include the costs of two reminders at the customary market rate of currently at least €20.00 per reminder, as well as one reminder 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 demand immediate payment of all services and partial services provided under other contracts concluded with the customer.
9.4 Furthermore, the agency is not obligated to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment in installments was agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt if partial amounts or ancillary claims are not paid on time (default).
9.6 The customer is not entitled to offset their own claims against claims of the agency, unless the customer's claim has been acknowledged in writing by the agency or established by a court.

10. Property Rights and Copyright

10.1 All services provided by the agency, including those resulting from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as individual work pieces and original drafts, remain the property of the agency and can be reclaimed by the agency at any time – particularly upon termination of the contractual relationship. By paying the fee, the client acquires the right to use the services for the agreed purpose. Unless otherwise agreed, the client may use the agency's services exclusively in Austria. The acquisition of usage and exploitation rights to agency services always requires full payment of the fees charged by the agency. If the client already uses the agency's services before this time, this use is based on a loan agreement that can be revoked at any time.
10.2 Changes to or modifications to the agency's services, including in particular their further development by the client or by third parties working for the client, are only permitted with the express consent of the agency and - if the services are protected by copyright - of the author. The release of all so-called "open files" therefore expressly does not become part of the contract. The agency is not obligated to release them. This means that without a contractual assignment of the rights of use, including for "electronic works", the client has no legal claim to them.
10.3 For the use of the agency's services that goes beyond the originally agreed purpose and scope of use, the agency's consent is required - regardless of whether this service is protected by copyright. The agency and the author are entitled to separate, appropriate remuneration for this.
10.4 For the use of agency services or advertising materials for which the agency has developed conceptual or design 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 For uses in accordance with paragraph 4, the agency is entitled to the full agency fee agreed in the expired contract in the first year after the end of the contract. In the second and third years after the contract has expired, only half or a quarter of the fee agreed in the contract is payable. From the fourth year after the contract has expired, no agency fee is payable.
10.6 The client is liable to the agency for any unlawful use in the amount of twice the appropriate fee for this use.

11. Labelling

11.1 The agency is entitled to refer to the agency and, if applicable, the author on all advertising materials and in all advertising measures without the customer being entitled to any remuneration for this.
11.2 The agency is entitled, subject to the customer's written revocation at any time, to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its website using the name and company logo (reference).

12. Warranty

12.1 The customer must report any defects immediately, in any case within eight days of delivery/performance by the agency, and hidden defects within eight days of their discovery, in writing and with a description of the defect; otherwise, any deviation from the service shall be deemed approved. In this case, the assertion of warranty and compensation claims, as well as the right to contest defects on the grounds of error, are excluded.
12.2 In the event of a justified and timely notification of defects, the customer has the right to have the delivery/service improved or replaced by the agency. The agency will remedy the defects within a reasonable period of time, whereby the customer will enable the agency to take all measures necessary to investigate and remedy the defects. The agency is entitled to refuse to improve the service if this is impossible or would involve disproportionate expenditure for the agency. In this case, the customer is entitled to the statutory rights of cancellation or reduction. In the event of improvement, it is the client's responsibility to return the defective (physical) item at their own expense.
12.3 The client is also responsible for reviewing the service for its legal admissibility, in particular with regard to competition, trademark, copyright, and administrative law. The agency is only obligated to conduct a rough review of legal admissibility. In cases of slight negligence or after fulfilling any duty 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/performance. The customer is not entitled to withhold payments due to complaints. The presumption rule of Section 924 of the 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 any material or financial damage to the customer, regardless of whether this involves direct or indirect damage, lost profits, consequential damage, damage due to delay, impossibility, positive breach of contract, fault upon conclusion of the contract, or defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that 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 brought against the client based on services provided by the agency (e.g., advertising measures) is expressly excluded if the agency has fulfilled its duty to provide information or if such a duty was not recognizable to it; slight negligence shall not be detrimental. In particular, the agency is not liable for legal costs, the client's own legal fees, or the costs of publishing judgments, as well as for any claims for damages or other claims by third parties; the client must indemnify and hold the agency harmless in this regard.
13.3 The client's claims for damages expire six months from knowledge of the damage; in any event, however, three years from the date of the infringement by the agency. Claims for damages are limited to the net order value.
14. Applicable Law
The contract and all mutual rights and obligations as well as claims derived therefrom between the agency and the customer are subject to Austrian substantive law, excluding its conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods.

15. Place of Performance and Jurisdiction

15.1 The place of performance is the registered office of the agency. In the case of shipment, the risk shall pass to the customer as soon as the agency has handed over the goods to the carrier of its choice.
15.2 The place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the registered office of the agency. Notwithstanding the foregoing, the agency is entitled to sue the customer at his or her general place of jurisdiction.
15.3 Insofar as terms referring to natural persons in this contract are only used in the masculine form, they refer to women and men equally. When applying the term to specific natural persons, the respective gender-specific form must be used.

The place of jurisdiction for all legal disputes shall be the Regional Court of Wiener Neustadt.