Terms and conditions

This is a convenience translation. Only the German version is legally binding.

Terms and conditions of “Ing. Christian Högl – Agency for print and web design”, based on the “Standard Terms and Conditions of Austrian Advertising Agencies”, 2002 edition, recommended by the Advertising and Market Communication Division of the Austrian Federal Economic Chamber.

1. General

These “Terms and Conditions” apply exclusively to all business between the client and the agency. Conflicting terms and conditions of the client are only effective if expressly acknowledged by the agency in writing.

Agreements deviating from or supplementing these “Terms and Conditions” must be made in writing.

Should individual provisions of these “Terms and Conditions” be invalid, this does not affect the binding nature of the remaining provisions or of contracts concluded on their basis. The invalid provision shall be replaced by a valid provision that comes closest to its meaning and purpose.

2. Conclusion of contract

The agency's offers are without obligation. The client is bound by its order for two weeks from its receipt by the agency. Client orders are only deemed accepted upon written order confirmation by the agency, unless the agency indicates acceptance of the order in another way — for example by acting on the basis of the order.

3. Services and fees

Unless otherwise agreed, the agency's entitlement to a fee for each individual service arises as soon as that service has been rendered. The agency is entitled to request advance payments to cover its expenses.

For the services rendered and the granting of rights of use, the agency receives a fee amounting to 15% of the advertising budget handled through it.

All agency services not expressly covered by the agreed fee are remunerated separately. This applies in particular to all ancillary services of the agency.

All cash outlays incurred by the agency that go beyond normal business operations (e.g. for courier services, extraordinary shipping costs or travel) are to be reimbursed by the client.

Cost estimates by the agency are generally non-binding. If it becomes foreseeable that the actual costs will exceed those estimated in writing by the agency by more than 20 per cent, the agency will inform the client of the higher costs. The cost overrun is deemed approved by the client if the client does not object in writing within three days of that notice and simultaneously proposes more economical alternatives.

The agency is entitled to reasonable remuneration for all work that, for whatever reason, is not carried through to completion. By paying this remuneration the client acquires no rights whatsoever in that work. Unexecuted concepts, drafts and the like must instead be returned to the agency without delay.

4. Presentations

The agency is entitled to a reasonable fee for participating in presentations, covering at least the agency's entire personnel and material expenditure for the presentation as well as the cost of all external services. If the agency does not receive an order after the presentation, all agency services — in particular the presentation documents and their content — remain the property of the agency; the client is not entitled to use these in any form whatsoever, and the documents must instead be returned to the agency without delay.

If the ideas and concepts introduced in the course of a presentation for solving communication tasks are not used in advertising material designed by the agency, the agency is entitled to use the presented ideas and concepts elsewhere.

Passing presentation documents on to third parties, as well as their publication, reproduction, distribution or other dissemination, is not permitted without the express consent of the agency.

5. Property rights and copyright protection

All services of the agency, including those from presentations

(e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, remain — as do the individual work pieces and original drafts — the property of the agency and may be reclaimed by the agency at any time, in particular upon termination of the agency contract. By paying the fee, the client acquires only the right of use (including reproduction) for the agreed purpose and within the agreed scope of use. Without an agreement to the contrary with the agency, the client may use the agency's services only itself, exclusively in Austria, and only for the duration of the agency contract.

Modifications of agency services by the client are permitted only with the express consent of the agency and — insofar as the services are protected by copyright — of the author.

Use of agency services that goes beyond the originally agreed purpose and scope of use requires the consent of the agency, irrespective of whether that service is protected by copyright. The agency and the author are entitled to separate reasonable remuneration for this; reasonable remuneration is in principle the fee set out in the agency agreement, but at least 7.5% of the payment made by the client to the third parties commissioned with the production, distribution or publication of the advertising material.

The consent of the agency is likewise required for the use, after expiry of the agency contract, of agency services or advertising material for which the agency has developed conceptual or design templates — irrespective of whether that service is protected by copyright.

For this, the agency is entitled in the first year after the end of the contract to the full agency remuneration agreed in the expired contract, as a rule 15%. In the second and third year after expiry of the contract, only half and a quarter respectively of the remuneration agreed in the contract applies. From the fourth year after the end of the contract, no further agency remuneration is payable.

6. Attribution

The agency is entitled to refer to the agency and, where applicable, to the author on all advertising material and in all advertising measures, without the client being entitled to any payment for this.

7. Approval

All agency services (in particular all preliminary drafts, sketches, final artwork, galley proofs, blueprints and colour proofs) must be checked by the client and approved within three days. If approval is not given in good time, they are deemed approved by the client.

The client will in particular have the legal admissibility of the agency services checked, above all under competition and trademark law. The agency arranges an external legal review only at the written request of the client; the associated costs are borne by the client.

8. Deadlines

The agency endeavours to meet the agreed deadlines. However, failure to meet deadlines only entitles the client to assert its statutory rights once it has granted the agency a grace period of at least 14 days. This period begins upon receipt of a reminder letter by the agency. An obligation to pay damages on the grounds of default exists only in the case of intent or gross negligence on the part of the agency. Unavoidable or unforeseeable events — in particular delays on the part of the agency's contractors — release the agency in any case from compliance with the agreed delivery date.

9. Payment

The agency's invoices are due immediately, net cash without any deduction from the invoice date, unless otherwise agreed. In the event of late payment, default interest at the current rate of 12% p.a. is deemed agreed. Goods delivered remain the property of the agency until payment has been made in full.

The client may only offset against undisputed or legally established claims, or assert a right of retention on that basis.

10. Warranty and damages

The client must assert and substantiate any complaints in writing within three days of performance by the agency. In the case of justified and timely complaints, the client is entitled only to rectification of the service by the agency.

In the case of a justified notice of defects, the defects will be remedied within a reasonable period, whereby the client shall enable the contractor to take all measures necessary for investigation and rectification.

The reversal of the burden of proof under § 294 of the Austrian Civil Code (ABGB) is excluded; the existence of the defect at the time of handover must be proven by the client.

Claims for damages by the client — in particular for default, impossibility of performance, positive breach of contract, culpability at the conclusion of the contract, defective or incomplete performance, consequential damage caused by a defect, or unlawful acts — are excluded unless they are based on intent or gross negligence on the part of the agency.

The agency accepts no liability whatsoever for the client's documents entrusted to it for processing.

11. Liability

The agency will carry out the work entrusted to it in compliance with generally recognised legal principles and will inform the client in good time of significant risks recognisable to it. However, the client itself is responsible for compliance with statutory provisions — in particular those of competition law — including in respect of advertising measures proposed by the agency. The client will only approve an advertising measure proposed by the agency (a sign or mark proposed by the agency) once it has itself ascertained that there are no concerns under competition law (trademark law), or if it is prepared to bear the risk associated with carrying out the advertising measure (using the mark) itself.

Any liability of the agency for claims raised against the client on the basis of the advertising measure (the use of a mark) is expressly excluded if the agency has fulfilled its duty to inform; in particular, the agency is not liable for litigation costs, the client's own legal fees or the costs of publishing judgments, nor for any claims for damages or similar claims by third parties.

In the event that the agency itself is held liable because of the implementation of an advertising measure (the use of a mark), the client shall indemnify and hold the agency harmless: the client must therefore compensate the agency for all financial and other disadvantages (including non-material damage) incurred by the agency as a result of a claim by a third party.

The contractor is liable for damages only where intent or gross negligence can be proven against it, within the scope of the statutory provisions. Liability for slight negligence is excluded. The existence of gross negligence must be proven by the injured party.

12. Applicable law

Austrian law applies exclusively to the legal relationship between the client and the agency.

13. Place of performance and jurisdiction

The place of performance is the registered office of the agency (Vienna).

The Austrian court with local and subject-matter jurisdiction for the registered office of the agency (Commercial Court of Vienna) is agreed as the place of jurisdiction for all disputes arising directly between the agency and the client.