General terms and conditions
klickbeben is a brand of Diwosch GmbH
Managing Director: Manuel Diwosch
VAT ID: ATU75272526
Member of the Chamber of Commerce for Tyrol
Business registration number 70133947 (Advertising agency)
1 Validity, conclusion of contract
1.1 Diwosch GmbH (hereinafter referred to as the "Agency") provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These shall apply to all legal relationships between the Agency and the Customer, 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 shall only be effective if they are confirmed in writing by the Agency.
1.3 Any terms and conditions of business of the Client shall not be accepted, even if known, unless expressly agreed otherwise 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 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 silence in the notification.
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
3. concept and idea protection
If the potential client has already invited the agency to prepare a concept in advance and if the agency complies with this invitation before the conclusion of the main contract, the following regulation shall apply:
3.1 Already through the invitation and the acceptance of the invitation by the agency, the potential client and the agency enter into a contractual relationship ("pitching contract"). This contract is also based on the GTC.
3.2 The potential client 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 client is not permitted to use or 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 valued 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 client 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 which he had already come up with prior to the presentation, he shall notify the Agency of this by e-mail within 14 days of the day of the presentation, citing evidence which allows a chronological attribution.
3.7 In the opposite case, the contracting parties shall assume that the Agency has presented the potential Client with an idea that is new to him. If the idea is used by the client, it shall be assumed that the agency became meritorious in the process.
3.8 The potential client may release itself from its obligations under this point by paying reasonable compensation plus 20% VAT. The release shall only come into effect after full receipt of the payment of the compensation by the Agency.
4. scope of services, order processing and cooperation obligations of the client
4.1 The scope of the services to be provided shall result 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 shall require written confirmation by the Agency. Within the framework specified by the customer, the Agency shall have freedom of design in the fulfilment of the order.
4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, colour prints and electronic files) must be checked by the Client and approved by him within three working days of receipt by the Client. If they are not released in time, they shall be deemed to have been approved by the customer.
4.3 The Client shall make available to the Agency, in a timely manner and in full, all information and documents required for the performance of the service. The Client shall inform the Agency of all circumstances that are of significance for the performance of the order, even if these only become known during the performance of the order. The customer shall bear the expense 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 Client 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 fulfilment of its duty to warn - in any case in the internal relationship with the Client - due to an infringement of such third-party rights by documents made available. 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 defence against any claims by third parties. The customer shall provide the Agency with all documents for this purpose without being requested to do so.
5. external 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 in 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 Client. The Agency shall carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 Insofar as the Agency commissions necessary or agreed external services, the respective contractors shall not be vicarious agents of the Agency.
5.4 The Client shall enter into obligations towards third parties that extend beyond the term of the contract. This shall expressly also apply in the event of termination of the agency contract for good cause.
6.1 Unless expressly agreed as binding, stated delivery or service deadlines shall only be considered 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 for more than two months, the Client and the Agency shall be entitled to withdraw from the contract.
6.3 If the Agency is in default, the Client 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 Client due to non-fulfilment or delay 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
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;
b) the customer continues to violate essential obligations under this contract, such as payment of a due amount or duties to cooperate, despite a written warning with a grace period of 14 days.
c) there are justified concerns about the creditworthiness of the customer and the customer does not make advance payments at the Agency's request or provide suitable security prior to the Agency's performance;
7.2 The Client 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.
8.1 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 a budget of € 500, 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 an 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 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.
8.4 The Agency's cost estimates shall not be binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the Agency 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 informs the agency of less expensive alternatives. In the case of a cost overrun of up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the client from the outset.
8.5 The Agency shall be entitled to the agreed remuneration for all work by the Agency that is not carried out by the Client for whatever reason. The offsetting provision of § 1168 ABGB shall be excluded. Upon payment of the fee, the Client shall not acquire any rights of use to work already performed; rather, concepts, drafts and other documents not executed shall be returned to the Agency without delay.
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 have been 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 on the part of the Client, 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 costs incurred, insofar as they are necessary for appropriate legal action. This shall in any case 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.
9.3 In the event of default in payment on the part of the Client, the Agency may declare all services and partial services rendered under other contracts concluded with the Client 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 instalments 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 (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 recognised by the Agency in writing or has been established by a court of law.
10. property rights and copyright
10.1 All services provided by the Agency, including those from presentations (e.g. suggestions, ideas, 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 client acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, the Client may use the Agency's services exclusively 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 for such services. If the customer already uses the Agency's services before this time, this use shall be 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 Client or by third parties acting on the Client's behalf, shall only be permissible with the express consent of the Agency and - insofar as the services are protected by copyright - of the author.
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 - irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to 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 Contract, irrespective of whether this service is valued 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 para. 4. 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 agency remuneration shall be paid.
10.6 The Client shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.
11.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising media 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 shall be 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).
12.1 The Customer shall report any defects in writing without delay, in any case within eight days of delivery/service by the Agency, hidden defects within eight days of recognising them, describing the defect; otherwise the service shall be deemed to have been 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 notification 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 service if this is impossible or involves disproportionately high expense for the Agency. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be incumbent on the Client to carry out the transfer of the defective (physical) item at its own expense.
12.3 It shall also be incumbent on the Client to carry out the review of the service with regard to its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency shall only be obliged to carry out 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 the content was specified or approved by the Client.
12.4 The warranty period shall be six months from delivery/service. The right of recourse against the Agency pursuant to §§933b para. 1 ABGB shall expire one year after delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption of conformity pursuant to § 924 ABGB shall be 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 material or financial damage to the Customer shall be excluded, irrespective of whether this relates to 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 shall 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".
13.2 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 apparent to it, whereby slight negligence shall not be prejudicial. In particular, the Agency shall not be liable for litigation costs, the Customer's own legal 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 act of infringement. The amount of claims for damages shall be limited to the net order value.
14. data protection (optical highlighting according to the case law)
The customer agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card data, VAT number) may be used for the purpose of fulfilling the contract and supporting the customer as well as for own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or former business relationship with the customer (reference). The client agrees that electronic mail may be sent to him for advertising purposes until revoked.
This consent may be revoked at any time in writing by e-mail, fax or letter to the contact details given at the top of the GTC.
15 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.
16 Place of performance and jurisdiction
16.1 The place of performance shall be the Agency's registered office. In the event 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.
16.2 The court 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 Agency's registered office. Notwithstanding the foregoing, the Agency shall be entitled to sue the Customer at its general place of jurisdiction.
16.3 Insofar as in this contract terms referring to natural persons are only stated in the masculine form, they 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.