Valid from March 01, 2024
Scope of application & validity
1.1 owl lab e.U. Mag. (FH) Anja Herbert, based at 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 also apply to all future business relationships, even if no express reference is made to them.
1.2 The version valid at the time the contract is concluded shall apply. Deviations from these and other supplementary agreements with the customer shall only be effective if they are confirmed in writing by the Agency.
1.3 Collateral agreements, reservations, amendments or supplements to these General Terms and Conditions must be made in writing in order to be valid; this also applies to any deviation from the written form requirement.
1.4 Any terms and conditions of the contractual partner that conflict with or deviate from these terms and conditions shall only become effective, even if known, if they are expressly recognized by the agency in writing.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity 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 of the invalid provision.
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 set out. The Agency’s offers are subject to change and non-binding.
2.2 If the customer places an order, he shall be bound to it for two weeks from receipt by the agency. The contract shall come into effect upon acceptance of the order by the Agency. Acceptance must be made in writing (e.g. by order confirmation), unless the Agency clearly indicates (e.g. by taking action on the basis of the order) that it accepts the order.
Scope of services, order processing and the customer’s duty to cooperate
3.1 The scope of the services to be provided is set out in 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 client acquires the right of use for the agreed purpose. Unless otherwise agreed, however, the client may only use the Agency’s services in Austria. The acquisition of rights of use and exploitation of the Agency’s services shall in any case require full payment of the fees invoiced by the Agency. If the customer uses the Agency’s services before this point in time, this use shall be based on a loan relationship that can be revoked at any time.
3.2 All proposals, descriptions and content contained in the concept, manuscripts and presentations shall remain with Anja Herberth (FH) in their entirety and content, regardless of the wording, with copyright and rights of use, even if a fee has been paid for the presentation. The concept fee is to be understood as a pure expense fee, but not as compensation for the copyright and rights of use. The passing on 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 Anja Herberth. If the concepts presented are not used, owl lab e.U. Mag. (FH) Anja Herberth shall be entitled to use them for other purposes.
3.3 All services provided by the agency must be checked by the client and approved within three days. If they are not approved in good time, they shall be deemed to have been approved by the client.
3.4 The client shall immediately provide the agency with all information and documents required for the provision of the service. He shall inform the Agency of all events that are of significance for the execution of the order, even if these circumstances only arise during 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 also be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any existing copyrights, trademark rights or other rights of third parties. In particular, the customer shall be liable for incorrect or erroneous information provided to the agency in the context of press activities. Do not share any information or files with us that contain a virus or other malware. We shall not be liable for any consequences arising from the sending of malicious information and files; in particular, the customer shall reimburse the agency for any additional costs incurred by the agency as a result of any malware.
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 as a result of a third-party claim.
The customer expressly warrants that the documents provided by him for the fulfillment of the order, of whatever kind, are free of third-party rights, in particular free of copyrights, trademark rights and personal rights. The customer shall indemnify and hold the Agency harmless in this respect; in particular, the customer shall compensate the Agency for all disadvantages incurred by the Agency as a result of claims asserted by third parties. The customer expressly warrants the accuracy of the information and documents provided by him and shall indemnify and hold the agency harmless in this respect; in particular, the customer shall reimburse the agency for all additional costs incurred by the agency due to incorrect information and/or documents.
3.6 Changes or adaptations of the Agency’s services, 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 – insofar as the services are protected by copyright – of the author . The publication of all so-called “open files” is therefore expressly not part of the contract. The agency is not obliged to surrender them. This means that the client has no legal claim to the rights of use for “electronic works” without a contractual assignment.
3.7 The Agency’s consent shall be required for the use of the Agency’s services beyond the originally agreed purpose and scope of use, irrespective of whether these services are protected by copyright. The agency and the author shall be entitled to separate appropriate remuneration for this.
3.8 The Agency’s consent shall also be required for the use of the Agency’s services or advertising material for which the Agency has developed conceptual or design templates after expiry of the Agency Agreement, irrespective of whether or not this service is protected by copyright.
3.9 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 in accordance with paragraph 7. In the 2nd or 3rd year after expiry of the contract, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration is payable.
3.10. The client shall be liable to the agency for any unlawful use in double the amount of the reasonable fee for such use.
External 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 in the provision of contractual services and/or to substitute such services (“agent”).
4.2 The commissioning of vicarious agents shall take place either in the customer’s own name or in the customer’s name, but in any case for the customer’s account.
4.3 The Agency shall carefully select agents and ensure that they have the necessary professional qualifications.
4.4 The customer must enter into obligations towards third parties that were named to the customer and that extend beyond the term of the contract . This also applies expressly in the event of termination of the agency contract 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 stated in the offers. Daily prices now apply for raw materials such as paper or productions such as roll-ups.
Dates
5.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be approximate and non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by the Agency.
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 service obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last for more than two months, the customer and the agency shall be entitled to withdraw from the contract.
5.3 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 has elapsed fruitlessly. The period shall commence upon receipt of the reminder by the Agency.
Claims for damages by the customer due to non-fulfillment or delay are excluded, except in the case of proof of intent or gross negligence.
Withdrawal from the contract
6.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
6.2 The customer shall be entitled to terminate the contract for good cause without setting a grace period. Good cause shall be deemed to exist 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.
Fee
7.1 Unless otherwise agreed, the Agency shall be entitled to a fee for each individual service as soon as it has been provided. The Agency shall be 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 shall be entitled to issue interim invoices or advance invoices or to request payments on account.
7.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, 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 at the usual market rate.
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 Client.
7.4 The Agency’s cost estimates are non-binding. If it is foreseeable that the actual costs will exceed the Agency’s written estimate by more than 15%, the Agency shall inform the Client 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 notification and at the same time announces 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 to have been approved by the client from the outset.
7.5 If the client unilaterally changes or cancels work commissioned without the involvement of the agency – without prejudice to other ongoing support by the agency – the client shall pay 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 Client must also reimburse the Agency for the entire fee (commission) agreed for this order, whereby the offsetting remuneration of § 1168 AGBG is excluded.
Furthermore, the Agency shall be indemnified and held harmless against any claims by third parties, in particular by the Agency’s contractors. Upon payment of the fee, the customer shall not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed shall be returned to the Agency without delay.
Payment
8.1 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 of all cash outlays 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.
8.2 If the customer is in default of payment, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default of payment, the customer undertakes to reimburse the agency for the reminder and collection expenses incurred, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminders in the usual market amount of currently at least € 20.00 per reminder as well as a reminder from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
8.3 In the event of default of payment by the customer, the agency may demand immediate payment of all services and partial services provided under other contracts concluded with the customer.
8.4 Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration shall remain unaffected.
8.5 If payment in installments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of deadline).
8.6 The Customer shall not be entitled to offset its own claims against claims of the Agency unless the Customer’s claim has been recognized by the Agency in writing or established by a court of law.
Presentations
If the potential client has already invited the agency to create a concept in advance and the agency complies with this invitation before the conclusion of the main contract, the following provision shall apply:
9.1 The potential client and the agency enter into a contractual relationship (“pitching contract”) as early as the invitation and acceptance of the invitation by the agency. This contract is also based on the GTC.
9.2 The potential client acknowledges that the agency already provides cost-intensive preliminary services with the concept development, although it has not yet assumed any performance obligations itself. 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 Agency’s entire personnel and material expenses for the presentation as well as the costs of all third-party services. By paying the presentation fee, the client does not acquire any rights of use or exploitation of the services presented.
9.3 The concept is protected by copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential client is not permitted to use or edit these parts without the consent of the agency, if only on the basis of copyright law.
9.4 The concept also contains ideas relevant to advertising and communication that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is produced later and thus as 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. In particular, advertising slogans and messages, (advertising) texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.
9.5 The potential client undertakes to refrain from commercially exploiting or having exploited or using or having used the creative advertising ideas presented by the agency as part of the concept outside the corrective of a main contract to be concluded at a later date.
9.6 If the potential client is of the opinion that ideas were presented to him by the agency which he had already thought of before the presentation, he must inform the agency of this by e-mail within 14 days of the day of the presentation, citing evidence that allows a chronological allocation.
9.7 In the opposite case, the contracting parties shall assume that the Agency has presented the potential Client with an idea that is new to it. If the idea is used by the client, it shall be assumed that the agency has made a profit.
9.8 The potential customer may release itself from its obligations under this point by paying appropriate compensation plus 20% VAT. The exemption shall not take effect until the Agency has received full payment of the compensation.
Property rights and copyright protection
10.1 All services of the Agency, such as the structure of the distribution lists or those from presentations (e.g. suggestions, ideas & concepts, sketches, preliminary drafts, scribbles, final artwork, 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 only acquires the right to use (including reproduction) for the agreed purpose and to the agreed extent of use.
10.2 Unless otherwise agreed with the Agency, the Client 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 the Agency’s services shall in any case require full payment of the fees invoiced by the Agency.
Labeling
11.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the author on all advertising material and in all advertising measures, without the Client being entitled to any remuneration for this.
11.2 Subject to written revocation by the customer, which is possible at any time, the agency shall be entitled to refer to the existing business relationship with the customer by name and company logo on its own advertising media and in particular on its Internet website.
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. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which cannot be calculated by the agency, that advertisements and appearances may be removed for no reason.
In the event of a complaint from another user, the providers will grant the option of a counterstatement, but the content will also be removed immediately in this case. In this case, it may take some time to restore the original, lawful status. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer’s order 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 carry out the customer’s order to the best of its knowledge and belief and to comply with the guidelines of “social media channels”. However, due to the currently valid terms of use and the simple possibility for any user to claim legal violations and thus achieve removal of the content, the agency cannot guarantee that the commissioned campaign will be available at all times.
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 event of justified and timely complaints, the customer shall only be entitled to improvement or replacement of the service by the agency.
13.2 The client shall be responsible for checking the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. The Agency shall only be obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfilling any duty to warn the client, the agency shall not be liable for the legal admissibility of content if this was specified or approved by the client.
13.3 In the event of justified complaints, the defects shall be remedied within a reasonable period of time, whereby the customer shall enable the Agency to take all measures necessary to investigate and remedy the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high costs 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 due to tortious acts are excluded, unless they are based on intent or gross negligence on the part of the agency.
13.6 The warranty period shall be six months from delivery/service. The right of recourse against the Agency pursuant to Section 933b (1) AGBG shall expire one year after delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption provision of § 924 AGBG is excluded.
13.7 Claims for damages shall be assessed according to the order value.
Liability
14.1 The Agency shall carry out the work assigned to it in compliance with the generally recognized principles of law and shall inform the Client in good time of any risks it recognizes. Any liability of the Agency for claims made against the Client on the basis of the advertising and communication measure (the use of a trademark) shall be expressly excluded if the Agency has complied with its duty to inform; in particular, the Agency shall not be liable for legal costs, the Client’s own legal costs or the costs of the publication of judgments or for any claims for damages or similar claims by third parties.
14.2 The Agency shall only be liable for damages within the scope of the statutory provisions if it can be proven to have acted with intent or gross negligence. 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 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. Insofar as the liability of the agency is excluded or limited, this shall also apply to the personal liability of its “people”.
14.4 Any liability of the Agency for claims made against the Client on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has complied with its duty to inform or if such a duty was not recognizable to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the Client’s own legal fees or the costs of the publication of judgments or for any claims for damages or other third-party claims; the Client shall indemnify and hold the Agency harmless in this respect.
14.5 The customer’s claims for damages shall expire six months after knowledge of the damage, but in any case after three years from the Agency’s act of infringement. Claims for damages shall be limited to the net order value.
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.
Place of fulfillment and jurisdiction
16.1 The place of performance shall be 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 registered office of the Agency.