GENERAL TERMS AND CONDITIONS

of franzjohann creative agency GmbH
Liechtensteinstrasse 45/8
1090 Vienna

1. Validity, conclusion of contract

1.1 franzjohann Kreativagentur GmbH (hereinafter referred to as "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 they are not expressly referred to. The GTC are exclusively applicable to legal relationships with entrepreneurs, i.e. B2B.

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 shall only be effective if they are confirmed in writing by the Agency.

1.3 Any terms and conditions of the Customer shall not be accepted, even if known, unless otherwise expressly agreed in writing in individual cases. The Agency expressly objects to the Customer's GTC. No further objection to the Customer's GTC by the Agency shall be required.

1.4 Amendments to the GTC shall be notified to the customer and shall be deemed to have been agreed if the customer does not object to the amended GTC in writing within 14 days; the customer shall be expressly informed of the significance of the silence and of the specifically amended clauses in the notification. This fiction of consent shall not apply to the amendment of essential service contents and charges.

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 thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose.

1.6 The Agency's offers are subject to change and non-binding.

2. 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 event of a complaint from another user, the providers are granted the opportunity to make a counterstatement, but even in this case the content is 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 the 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 order of the customer to the best of its knowledge 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 violations of rights and thus achieve a removal of the content, the agency cannot guarantee that the commissioned campaign is also retrievable at all times.

3. Concept and idea protection

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:

3.1 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.

3.2 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.

3.3 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 permitted to use and edit these parts without the consent of the agency, if only on the basis of copyright law.

3.4 The concept also contains ideas relevant to advertising 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 imprint. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are considered to be ideas within the meaning of this agreement, even if they do not reach the level of a work.

3.5 The potential customer undertakes to refrain from commercially exploiting or having 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.

3.6 If the potential Client is of the opinion that ideas were presented to him by the Agency that he had already come up with before the presentation, he shall notify the Agency of this by e-mail within 14 days of the day of the presentation, citing evidence that allows a temporal attribution.

3.7 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 customer, it shall be assumed that the agency became meritorious in the process.

3.8 The potential customer may release himself from his obligations under this point by paying a reasonable compensation, which is calculated according to the individual case, plus 20% VAT. The release shall only come into effect after the full payment of the compensation has been received by the Agency.

4. Scope of services, order processing and customer's duty 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 in the fulfillment of the order.

4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be reviewed by the Customer and approved by the Customer within three working days of receipt by the Customer. After expiry of this period without feedback from the customer, they shall be deemed to have been approved by the customer.

4.3 The Customer shall make available to the Agency in a timely manner and in full all information and documents required for the performance of the service. He shall inform the Agency of all circumstances that are of importance for the execution of the order, even if these only become known during the execution of the order. The customer shall bear the expenses incurred by the fact that work has to be repeated or is delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.

4.4 The Customer shall furthermore be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights or other rights of third parties (rights clearing) and shall guarantee that the documents are free of third-party rights and can therefore be used for the intended purpose. The Agency shall not be liable in the case of merely slight negligence or after fulfillment of its duty to warn - at least in the internal relationship with the Customer - due to an infringement of such third-party rights by documents provided. If a claim is made against the Agency by a third party due to such an infringement of rights, 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 against it by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in the defense of any claims by third parties. The customer shall provide the agency with all documents for this purpose without being requested to do so.

5. Third-party services / commissioning of third parties

5.1 The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents for the performance of services that are the subject matter of the contract and/or to substitute such services ("Third Party Service").

5.2 The commissioning of third parties within the scope of an external service shall take place either in the Agency's own name or in the name of the Customer, the latter after prior information to the Customer. The Agency shall carefully select this third party and ensure that it has the required professional qualifications.

5.3 The Customer shall enter into obligations vis-à-vis third parties that have been named to the Customer and that extend beyond the term of the contract. This shall expressly also apply in the event of termination of the agency agreement for good cause.

6. Dates

6.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall be deemed to be only approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.

6.2 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 service obligations 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.

6.3 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. Claims for damages by the Customer due to non-performance or default shall be excluded, except in the case of evidence of intent or gross negligence.

7. Early dissolution

7.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. An important reason shall be deemed to exist in particular if

1. a) 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;
2. b) 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.
3. c) 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;

7.2 The Customer shall be entitled to terminate the contract for good cause without granting a grace period. An important reason shall be deemed to exist 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 violation of the contract.

8. Fee

8.1 Unless otherwise agreed, the Agency's fee claim shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 5,000, or those extending over a longer period of time, the Agency shall be entitled to issue interim or advance invoices or to call for payments on account.

8.2 The fee shall be understood as 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 in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.

8.3 All services of the Agency that are not expressly compensated by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Customer.

8.4 Cost estimates of the Agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated by the Agency in writing by more than 15%, the Agency shall notify 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 such notification and at the same time discloses less expensive 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 customer from the outset.

8.5 If the Customer unilaterally changes or cancels work commissioned without the Agency's involvement - notwithstanding the Agency's ongoing other support - 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. If the termination is not due to a grossly negligent or intentional breach of duty by the Agency, the Customer shall also reimburse the Agency for the entire fee agreed for this order (commission), whereby the credit compensation of § 1168 AGBG is excluded. Furthermore, the Agency shall be indemnified and held harmless against any claims of third parties, in particular contractors of the Agency. With the payment of the fee, the customer does not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed are to be returned to the agency immediately.

9. Payment, retention of title

9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This shall also apply 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 fee including all ancillary liabilities.

9.2 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 the reminder and collection expenses incurred, insofar as they are necessary for appropriate legal prosecution. This includes in any case the costs of two reminders in the usual 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 shall remain unaffected.

9.3 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.

9.4 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 shall remain unaffected.

9.5 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 (forward loss).

9.6 The Customer shall not be entitled to set off its 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.

10. Property right 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, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may 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. The acquisition of rights of use and exploitation of services of the Agency requires in any case the full payment of the fees charged by the Agency for it. 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.

10.2 Modifications or adaptations of the Agency's services, such as in particular their further development by the Customer or by third parties working for the Customer, shall only be permitted with the express consent of the Agency and - insofar as the services are protected by copyright - of the author. The release 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.

10.3 The Agency's consent shall be required for the use of the Agency's services that goes beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright. The Agency and the author shall be entitled to a separate appropriate remuneration for this.

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

10.5 In the first year after the end of the contract, the Agency shall be entitled to the full agency fee agreed in the expired contract for uses pursuant to Paragraph 4. In the 2nd or 3rd year after expiry of the Agreement, only half or one quarter of the remuneration agreed in the Agreement shall be due. From the 4th year after the end of the contract, no more agency remuneration is payable.

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

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 Customer's written revocation, which is possible at any time, the Agency shall be entitled to refer to the existing or former business relationship with the Customer on its own advertising media and in particular on its Internet website by name and company logo (reference).

12. Warranty

12.1 The Customer shall notify any defects in writing without delay, in any case within eight days after delivery/service by the Agency, hidden defects within eight days after detection of the same, describing the defect; otherwise any deviation of the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.

12.2 In the event of justified and timely notice of defects, the Customer shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the Customer shall enable the Agency to take all measures necessary to examine and remedy the defects. The Agency shall be entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for the Agency. In this case, the customer is entitled to the statutory rights of conversion or reduction. In the case of improvement, it is the responsibility of the client to carry out the transfer of the defective (physical) item at his expense.

12.3 It shall also be incumbent on the Client to carry out the review of the performance with regard to its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency shall only be obliged 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 Client, if such content has been specified or approved by the Client.

12.4 The warranty period shall be six months from delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption provision of § 924 AGBG is excluded.

13. Liability and product liability

13.1 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 shall be excluded, irrespective of whether 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 is involved. The existence of gross negligence has to 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".

13.2 Any liability of the Agency for claims made against the Customer on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has fulfilled its duty to inform or if such a duty was not recognizable to it, whereby slight negligence shall not harm. 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.

13.3 Claims for damages by the Customer shall expire six months after knowledge of the damage; in any case, however, after three years after the Agency's infringement. The amount of claims for damages shall be limited to the net order value.

14. Applicable law

The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the Customer shall be governed by Austrian substantive law, excluding its conflict of law rules and excluding the UN Convention on Contracts for the International Sale of Goods.

15. Place of performance and jurisdiction

15.1 The place of performance shall be the registered office of the Agency. In case of shipment, the risk shall pass to the Customer as soon as the Agency has handed over the goods to the carrier chosen by it.

15.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court having subject-matter jurisdiction for the registered office of the Agency. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at its general place of jurisdiction.

15.3 Insofar as in this Agreement terms referring to natural persons are only stated in the masculine form, they shall refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.

 

Status: January 2022