Terms & Conditions

1. Application and Contract

1.1 Identity Lab GmbH (from now on referred to as “Agency”) provides its services exclusively based on the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the customer, even if not expressly referred to. The GTC apply solely to relationships with business entities, hence B2B.

1.2 The version valid at the time of contract conclusion shall be authoritative in each case. Deviations from these, as well as any additional 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 and specifically agreed otherwise in writing in individual cases. The agency expressly rejects the customer’s terms and conditions. There is no need for further objection to the client’s terms and conditions by the agency.

1.4 Changes to the terms and conditions will be communicated to the customer and will be deemed agreed upon if the customer does not object to the amended terms and conditions in writing within 14 days; the customer will be expressly informed about the significance of their silence as well as the specific amended clauses in the notification. This presumed consent does not apply to changes in significant service details and fees.

1.5 If individual provisions of these General Terms and Conditions are ineffective, this does not affect the validity of the remaining provisions and the contracts concluded under their basis. The invalid provision shall be replaced by an effective provision that most closely aligns with the meaning and purpose.

1.6 The offers of the agency are non-binding and subject to change.

2. Social Media Channels

Before placing an order, the agency explicitly informs the client that 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. Providers are, therefore, not obliged to forward content and information to users. Consequently, there is a risk, which the agency cannot predict, that ads and appearances may be removed without cause. Even if another user files a complaint, the providers might counter-report, but in such cases, the content will be immediately taken down. Returning to the original legal state may take time in such instances. The agency operates based on these terms of use set by the providers, over which it has no influence, and also incorporates them into the customer’s order. By placing an order, the customer explicitly acknowledges that these terms of use define the rights and responsibilities of any contractual relationship. The agency intends to carry out the customer’s order to the best of its knowledge and abilities and to adhere to the guidelines of “social media channels.” However, due to the currently effective terms of use and the ease with which any user can claim legal violations, leading to content removal, the agency cannot guarantee that the commissioned campaign will be accessible at all times.

3. Protection of concepts and ideas

If the prospective client has already invited the agency to create a concept in advance, and the agency fulfills this invitation before the main contract is concluded, the following regulation applies:

If the potential client has pre-invited the agency to create a concept and the agency responds to this invitation before finalizing the main contract, the following provision applies:

3.2 The prospective client acknowledges that the agency is already providing cost-intensive preliminary services in the process of developing the concept, even though the client has not yet assumed any performance obligations.

3.3 The concept, including its linguistic and graphic components to the extent that they reach a level of originality, is protected by copyright law. The prospective client is prohibited from using and modifying these components without the agency’s consent based on the provisions of copyright law.

3.4 Das Konzept enthält darüber hinaus werberelevante Ideen, die keine Werkhöhe erreichen und damit nicht den Schutz des Urheberrechtsgesetzes genießen. These ideas are at the beginning of each creative process and can be defined as a sparkling spark of everything later 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 words, advertising texts, graphics and illustrations, advertising materials, etc., are seen as an idea within the meaning of this agreement, even if they do not reach the height of the work.

3.5 The prospective client undertakes to refrain from economically exploiting, having exploited, using, or having used the creative advertising ideas presented by the agency within the scope of the concept, except within the corrective framework of a subsequently concluded main contract.

3.6 If the prospective client thinks that ideas were presented to him by the agency on which he had already come before the presentation, he must notify the agency of this within 14 days after the day of the production by email, stating evidence that allows for a chronological assignment.

3.5 In the opposite case, the contracting parties assume that the agency has presented a new idea to the prospective client. If the idea is used by the customer, it is to be assumed that the agency has made a valuable contribution in doing so.

3.8 The prospective client can release themselves from their obligations under this point by paying a reasonable compensation, which is calculated on a case-by-case basis, plus 20% value-added tax. The exemption only takes effect upon the agency’s full receipt of the compensation payment.

4. Customer’s Cooperation Obligations

4.1 The scope of the services to be provided is based on the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol (“proposal documents”). Subsequent changes to the scope of services require written confirmation by the agency. Within the framework provided by the customer, the agency has creative freedom in fulfilling the task.

4.2 All services provided by the agency (especially all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints, and electronic files) are to be reviewed by the customer and approved by them within three working days of receipt by the customer. If this deadline passes without feedback from the customer, they will be deemed approved by the customer.

4.3 The customer shall provide the agency with all necessary information and documents in a timely and complete manner for the provision of the service. They will inform the agency of all circumstances relevant to the execution of the order, even if they only become known during the execution of the order. The customer shall bear the expenses incurred due to work having to be repeated or delayed by the agency as a result of the customer’s incorrect, incomplete, or subsequently changed information.

4.4 Furthermore, the customer is obligated to examine the materials (photos, logos, etc.) provided for the execution of the order for potential copyright, trademark, or other third-party rights (rights clearance), and guarantees that these materials are free from third-party rights and can therefore be used for the intended purpose. The agency shall not be liable for any infringement of such third-party rights by the provided materials in cases of mere slight negligence or after fulfilling its duty to warn – at least in the internal relationship with the customer. If the agency is claimed against by a third party due to such a violation of rights, the customer shall indemnify and hold the agency harmless; the customer shall reimburse the agency for all disadvantages arising from such a third-party claim, especially the costs of reasonable legal representation. The customer undertakes to support the agency in defending against any potential third-party claims. For this purpose, the customer shall provide all necessary documents to the agency without delay.

5. External services / commissioning third parties

5.1 The agency is entitled, at its own discretion, to perform the service itself, to use knowledgeable third parties as agents for the provision of contractually agreed services, and/or to substitute such services (“external services”).

5.2 The engagement of third parties within the scope of external services is done either in the agency’s own name or on behalf of the customer, the latter after prior notification to the customer. The agency will carefully select these third parties and ensure that they possess the necessary professional qualifications.

5.3 The customer is obligated to assume commitments towards third parties that have been disclosed to the customer and that extend beyond the duration of the contract. This obligation also applies explicitly in cases of termination of the agency contract for valid reasons.

6. Dates

6.1 Specified delivery or performance deadlines are considered approximate and non-binding unless expressly agreed upon as binding. Binding deadline agreements must be recorded in writing or confirmed in writing by the agency.

6.2 If the delivery/performance by the agency is delayed due to reasons not attributable to the agency, such as force majeure and other unforeseeable events that cannot be prevented with reasonable means, the performance obligations are suspended for the duration and scope of the impediment, and the deadlines are extended accordingly. If such delays persist for more than two months, both the customer and the agency are entitled to withdraw from the contract.

6.3 If the agency is in default, the customer can only withdraw from the contract after having set a reasonable grace period of at least 14 days in writing to the agency and this period has lapsed without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the event of proof of willful intent or gross negligence.

7. Early Dissolution

7.1 The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason is particularly present when:

a) the execution of the service becomes impossible due to reasons attributable to the customer or is further delayed despite a grace period of 14 days being set;

b) the customer, despite receiving a written warning with a grace period of 14 days, persistently violates significant obligations under this contract, such as payment of a due amount or cooperation duties.

c) there are justified concerns regarding the customer’s creditworthiness and the customer, upon the agency’s request, neither makes advance payments nor provides adequate security before the agency’s performance.

7.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason is particularly present when the agency, despite written admonition with a reasonable grace period of at least 14 days to remedy the contractual violation against essential provisions of this contract, continues to violate said provisions.

8. Fees

8.1 If nothing else is agreed upon, the agency’s right to remuneration for each individual service arises as soon as that service has been provided. The agency is entitled to request advances to cover its expenses. For projects with a (yearly) budget of € 5,000 or more, or those extending over a longer period, the agency is authorized to create interim invoices or advance invoices, or to request instalment payments.

8.2 The fee is understood as a net fee plus the applicable value-added tax. In the absence of specific agreements, the agency is entitled to a fee at the customary market rate for the services rendered and the granting of copyright and trademark usage rights.

8.3 All services of the agency that are not explicitly covered by the agreed fee will be separately compensated. All out-of-pocket expenses incurred by the agency are to be reimbursed by the customer.

8.4 Cost estimates provided by the agency are non-binding. If it becomes apparent that the actual costs will exceed the ones estimated by the agency in writing by more than 15%, the agency will inform the customer about the higher costs. The cost overrun is considered approved by the customer if they do not raise a written objection within three working days of receiving this notice and also suggest more cost-effective alternatives. For cost overruns up to 15%, a separate agreement is not necessary. This cost estimate overrun is assumed to be approved by the client by default.

8.5 If the customer unilaterally changes or terminates commissioned work without involving the agency, notwithstanding any ongoing general support provided by the agency, the customer is obligated to compensate the agency for the services rendered up to that point, in accordance with the agreed-upon fee arrangement, and reimburse all incurred costs. If the termination is not based on a grossly negligent or intentional breach of duty by the agency, the customer must also reimburse the entire agreed-upon fee (commission) for this project, without the application of the offset compensation under § 1168 of the General Civil Code. Furthermore, the customer is required to indemnify and hold the agency harmless regarding any potential claims from third parties, especially contractors of the agency. Payment of the fee does not grant the customer any usage rights to the work already performed; unused concepts, drafts, and other documents must be promptly returned to the agency.

9. Payment, retention of title

9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed upon in writing in individual cases. This also applies to the reimbursement of all cash expenses and other costs. The goods supplied by the agency remain the property of the agency until full payment of the fee, including all ancillary obligations.

9.2 In the event of the customer’s payment default, the statutory default interest rates apply, as applicable to business transactions. Furthermore, in case of payment default, the customer undertakes to reimburse the agency for the incurred reminder and collection expenses, to the extent necessary for the appropriate legal pursuit. In any case, this includes the costs of two formal reminders of at least €20.00 per reminder and a formal notice from a lawyer engaged for collection. The assertion of additional rights and claims remains unaffected.

9.3 In the event of the customer’s payment default, the agency is entitled to deem all services and partial services provided within the scope of other contracts concluded with the customer immediately due for payment.

9.4 Furthermore, the agency is not obligated to provide further services until the outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected by this.

9.5 If payment in installments has been agreed upon, the agency reserves the right to demand immediate payment of the entire remaining debt in case of non-timely payment of partial amounts or incidental claims (loss of installment privilege).

9.6 The customer is not entitled to set off their own claims against claims of the agency, unless the customer’s claim has been acknowledged by the agency in writing or has been legally established.

10. Property and Copyright

10.1 All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, finished artwork, concepts, negatives, slides), as well as individual parts thereof, remain the property of the agency, as well as the individual pieces and original designs, and can be reclaimed by the agency at any time, especially upon termination of the contractual relationship. The customer acquires the right to use the services for the agreed purpose through payment of the fee. Unless otherwise agreed, the customer is only allowed to use the agency’s services in Austria. The acquisition of usage and exploitation rights to agency’s services always requires the full payment of the fees invoiced by the agency for such rights. If the customer uses the agency’s services before this point in time, this usage is based on a revocable loan agreement.

10.2 Changes or modifications to agency’s services, especially their further development by the customer or third parties acting on behalf of the customer, are only permissible with the explicit consent of the agency and, to the extent that the services are protected by copyright, the author. The release of all so-called “source files” is expressly not part of the contract. The agency is not obligated to provide the release. This means that without a contractual assignment of usage rights, including for “electronic works,” the client has no legal claim to it.

10.3 For the use of agency services that go beyond the originally agreed purpose and scope of use, the consent of the agency is required, regardless of whether the service is protected by copyright. For this, the agency and the author are entitled to a separate appropriate remuneration.

10.4 For the use of agency services or advertising materials for which the agency has developed conceptual or design templates, the consent of the agency is also required after the expiration of the agency contract, regardless of whether this service is protected by copyright or not.

10.5 For uses according to paragraph 4, the agency is entitled to the full agency fee agreed upon in the expired contract in the 1st year after the end of the contract. In the 2nd or 3rd year after the contract has ended, only half or a quarter of the agreed-upon fee in the contract is payable. From the 4th year after the end of the contract, no agency fee is payable anymore.

10.6 The customer shall be liable to the agency for any unauthorized use at twice the amount of the appropriate fee for such use.

11. Labeling

11.1 The agency is entitled to indicate its name 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 Subject to the customer’s right to revoke it in writing at any time, the agency is entitled to refer to the existing or former business relationship with the customer (reference note) on its own advertising media, especially on its website, using the name and company logo.

12. Warranty

12.1 The customer must report any defects promptly, in any case within eight days after delivery/performance by the agency, and hidden defects within eight days after their discovery, in writing and describing the defect; otherwise, any deviation in performance is deemed approved. In this case, asserting warranty and compensation claims as well as the right to contest a contract due to defects is excluded.

12.2 In the event of justified and timely notification of defects, the customer has the right to demand rectification or replacement of the delivery/performance by the agency. The agency will remedy the defects within a reasonable period, with the customer providing the agency with all necessary measures for investigation and rectification. The agency is entitled to refuse to rectify the performance if it is impossible or involves disproportionate effort for the agency. In this case, the customer has the legal rights to rescission or reduction. In the case of rectification, the customer is responsible for the transport of the defective (physical) item at their own cost.

12.3 It is also the responsibility of the client to verify the legality of the performance in terms of legal aspects, particularly with regard to competition, trademarks, copyrights, and administrative law. The agency is only obligated to conduct a basic review of legal permissibility. The agency shall not be liable for the legal permissibility of content if such content has been provided or approved by the customer, except in cases of slight negligence or after fulfilling any necessary warning obligations towards the customer.

12.4 The warranty period is six months from delivery/performance. The customer is not allowed to withhold payments due to alleged defects. The presumption rule of § 924 AGBG is excluded.

13. Liability and Product Liability

13.1 In cases of slight negligence, the agency and its employees, contractors, or other agents (“individuals”) shall not be liable for material or financial damages suffered by the customer, regardless of whether they are direct or indirect damages, lost profits, consequential damages, damages due to delay, impossibility, positive breach of contract, negligence at the time of conclusion of contract, or due to defective or incomplete performance. The burden of proving gross negligence lies with the injured party. To the extent that the agency’s liability is excluded or limited, this also applies to the personal liability of its “individuals.”

13.2 Any liability of the agency for claims arising from the services provided by the agency (e.g. advertising measures) against the customer is expressly excluded if the agency has fulfilled its duty to provide warnings or if such duty was not recognizable to the agency, without prejudice to slight negligence. In particular, the agency is not liable for legal costs, the customer’s own attorney fees, or costs of publishing judgments, as well as for any damage claims or other claims by third parties; the customer shall indemnify and hold the agency harmless in this regard.

13.3 Claims for damages by the customer shall expire six months after becoming aware of the damage, but in any case after three years from the agency’s breach of duty. Claims for damages are limited in amount to the net order value.

14. Governing Law

The contract and all rights and obligations as well as claims derived from it between the agency and the customer are subject to Austrian substantive law, excluding its conflict of law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

15. Place of Performance and Jurisdiction

15.1 Place of performance is the registered office of the agency. In the case of shipping, the risk passes to the customer as soon as the agency hands over the goods to the chosen carrier.

15.2 The place of jurisdiction (the place of jurisdiction must be explicitly agreed again in the contractual agreement with the customer ) for all legal disputes arising between the agency and the customer in connection with this contractual relationship is the competent court for the agency’s registered office. Irrespective of this, the agency is entitled to sue the customer at his general place of jurisdiction.

15.3 Wherever in this contract terms referring to natural persons are mentioned only in the male form, they apply to both women and men equally. When referring to specific individuals, the appropriate form must be used.