1. Application and Contract
- Identity Lab GmbH + Co KG (the Studio) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Studio and the customer, even if not expressly referred to.
- The valid version of the GTC at the time of the conclusion of the contract is decisive. Deviations from the GTC as well as other supplementary agreements with the customer are only valid if they are confirmed in writing by the Studio.
- Any terms and conditions of the customer shall not be accepted, even if they are known, unless expressly agreed upon in writing and on a case by case basis. The Studio GTC expressly nullify customer terms and conditions. A further objection to the customer’s terms and conditions by the Studio is not required. Changes to the GTC will be announced to the customer and shall be deemed agreed upon if the customer does not object to the changed GTC in writing within 14 days; the customer is expressly advised of the importance of silence in communication.
- Any terms and conditions of the customer will not be accepted, even if they are aware, unless otherwise is expressly and in writing agreed on a case-by-case basis. The customer’s terms and conditions are expressly contradicted by the studio. There is no need for further objection to the client’s terms and conditions by the agency.
- Changes to the terms and conditions will be disclosed to the customer and shall be deemed to have been agreed if the customer does not object to the amended terms and conditions in writing within 14 days; The customer is expressly informed of the importance of the silence in the communication.
- Should individual provisions of these Terms and Conditions be invalid, this shall not affect the liability of the remaining provisions and the contracts concluded on the basis of their condition. The invalid provision shall be replaced by an effective one that comes closest to the sense and purpose.
- The studio’s offerings are subject to change and are non-binding.
2. Social media Channels
The Studio expressly points out to the customer before placing the order that the providers of “social media channels” (e.g. Facebook, hereinafter referred to as providers) reserve the right to advertise and perform for any reason. or remove it. Providers are therefore under no obligation to pass on content and information to users. There is therefore the risk, which the agency does not calculate, that ads and appearances will be removed for no reason.
3. Protection of Strategy, Concept and Ideas
If the potential customer has already invited the studio in advance to create strategy and concept, and the studio complies with this invitation before the conclusion of the main contract, the following rule applies:
- Already by the invitation and acceptance of the invitation by the studio, the potential customer and the studio enter into a contractual relationship (“pitching contract”). This contract, too, is based on the terms and conditions.
- 2. The potential customer acknowledges that the studio already provides cost-intensive upfront services with the concept development, even though he has not yet assumed any performance obligations.
- In its strategic, linguistic and graphic parts, the concept is subject to the protection of the Copyright Act, as far as this level of work reaches. The potential customer is not permitted to use and process these parts without the consent of the Agency on the basis of the Copyright Act.
- The concept also contains communication development strategies and advertising-relevant ideas that do not reach factory levels and thus do not enjoy the protection of the Copyright Act. These ideas are at the beginning of every creative process and can be defined as a sparkling spark of everything produced later and thus as the origin of the 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.
- The potential customer undertakes not to allow these strategies, ideas and implementations presented by the studio within the framework of the concept to be economically utilized or utilized outside the corrective of a main contract to be concluded later. or to be used or used.
- If the potential customer believes that the studio has presented him with ideas that he himself had before the presentation, he will have to do so to the Agency by e-mail within 14 days of the date of presentation, citing evidence that would assign to announce.
- In the opposite case, the contracting parties assume that the studio has presented the potential customer with a new idea for him. If the idea is used by the customer, it can be assumed that the studio became meritorious in the process.
- The potential customer can exempt himself from his obligations on this point by paying reasonable compensation plus 20 sales tax. The exemption will only enter after the full receipt of the payment of the compensation.
4. Customer’s Cooperation Obligations
- The scope of the services to be provided is determined by the service description in the agency contract or any order confirmation by the studio as well as the possible briefing protocol (“offer documents”). Subsequent changes in performance content require written confirmation by the studio. Within the framework specified by the customer, there is freedom of design of the studio in fulfilling the order.
- All services of the studio (in particular all preliminary drafts, sketches, clean drawings, brush prints, blueprints, copies, color prints and electronic files) must be checked by the customer and released by the customer within three working days from receipt by the customer. In the event of non-timely release, they are deemed to have been approved by the customer.
- The customer will provide the studio with timely and complete all the information and documentation required to deliver the service. He will inform the Studio of all circumstances relevant to the execution of the order, even if they become known only during the execution of the order. The customer bears the expense that arises from the fact that work has to be repeated or delayed by the studio as a result of his incorrect, incomplete or subsequently changed information.
- The customer is also obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, trademark or other rights of third parties. The studio is not liable for any violation of such rights. If the Studio is invoked for such a violation of the law, the customer shall hold the Studio harmless and without complaint; he shall reimburse him for all disadvantages incurred by him as a result of a claim by third parties, in particular the costs of adequate legal representation. The customer undertakes to support the studio in defending against any claims made by third parties. The customer provides the studio with all documents unsolicited.
5. Assignment of Third Parties
- The studio is entitled, at its own discretion, to perform the service itself, to use knowledgeable third parties as vicarious agents in the provision of contractual services and to substitute such services (“external performance”).
- The assignment of third parties as part of a third-party service is carried out either on their own behalf or on behalf of the customer. The studio will carefully select this third party and ensure that he has the necessary professional qualifications.
- To the extent that the studio commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the studio.
- In obligations to third parties that go beyond the duration of the contract, the customer must enter into it. This also applies explicitly in the event of termination of the agency contract for good cause.
- Specified delivery or service deadlines are considered to be approximate and non-binding unless expressly agreed as binding. Binding appointments must be recorded in writing or confirmed in writing by the studio.
- If the studio’s delivery/performance is delayed for reasons beyond its control, such as force majeure events and other unforeseeable events that cannot be averted by reasonable means, the performance obligations for the duration and scope of the Obstacle and lengthening the deadlines accordingly. If such delays persist for more than two months, the customer and the studio are entitled to withdraw from the contract.
- If the studio is in default, the customer can only withdraw from the contract after he has given the studio a reasonable grace period of at least 14 days in writing and this has passed fruitlessly. Claims for damages by the customer due to non-performance or delay are excluded, except in the event of proof of wilful intent or gross negligence.
7. Early Resolution
The studio is entitled to terminate the contract with immediate effect for important reasons. An important reason is particularly present when
- The performance of the service becomes impossible for reasons for which the customer is responsible, or is further delayed despite the setting of a grace period of 14 days;
- The customer continued, despite a written warning with a grace period of 14 days, in breach of essential obligations under this contract, such as payment of a due amount or obligations to cooperate.
- legitimate concerns about the customer’s creditworthiness and the client does not make advance payments at the studio’s request or provide adequate security prior to the studio’s performance.
The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason is in particular if the studio continues, despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of the contract, violates essential provisions under this contract.
- Unless otherwise agreed, the Studio’s fee claim for each individual service arises as soon as it has been performed. The studio is entitled to demand advances to cover their expenses. From an order volume with an (annual) budget of € 5,000 or those that extend over a longer period of time, the Studio is entitled to create interim statements or advance invoices or to retrieve on-account payments.
- The fee is a net fee plus the statutory sales tax. In the absence of an agreement on a case-by-case basis, the Agency is entitled to a fee of the usual market amount for the services provided and the surrender of copyright and trademark rights to use.
- All services of the studio, which are not expressly compensated by the agreed fee, will be paid separately. All cash expenses grown in the studio must be replaced by the customer.
- The studio’s estimates are non-binding. If it is foreseeable that the actual costs exceed the studio’s written estimates of more than 15, the Studio will notify the customer of the higher costs. The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announces more cost-effective alternatives. If there is a cost overrun of up to 15 , a separate communication is not required. This cost estimate overrun is considered to be approved by the client in the first place.
- For all the works of the studio, which for whatever reason are not carried out by the customer, the studio deserves the agreed fee. The crediting provision of § 1168 ABGB is excluded. With the payment of the fee, the customer does not acquire any rights of use in the work already carried out; On the contrary, unexecuted concepts, drafts and other documents must be returned to the studio without delay.
9. Payment, retention of title
- The fee is due immediately with the receipt of the invoice and without deduction for payment, unless special payment terms are agreed in writing on a case-by-case basis. This also applies to the re-billing of all cash expenses and other expenses. The goods delivered by the Studio shall remain the property of the Studio until full payment of the fee, including all incidental liabilities.
- In the event of a delay in payment on the part of the customer, the statutory interest on arrears applies in the amount applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to replace the resulting reminder and collection expenses for the studio, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two letters of formal warning of at least €20.00 per reminder and a letter of formal notice from a lawyer charged with the collection. The assertion of further rights and demands remains unaffected.
- In the event of a delay in payment by the customer, the studio may immediately make all services and partial services provided in the context of other contracts with the customer.
- Furthermore, the studio is not obliged to provide further services until the pending amount has been paid (right of retention). The obligation to pay is unaffected.
- If payment has been agreed in instalments, the Studio reserves the right to demand immediate payment of all outstanding debt in the event of non-timely payment of partial amounts or ancillary claims (loss of appointment).
- The customer is not entitled to set off his own claims against claims of the studio, unless the customer’s claim has been acknowledged by the studio in writing or determined by the courts.
10. Property and Copyright
- All services of the studio, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, skribbles, pure drawings, concepts, negatives), including individual parts thereof, remain the property of individual workpieces and original design pieces. of the Studio and may be requested back from the Studio 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. However, in the absence of an agreement to the contrary, the customer may use the studio’s services exclusively in Europe. The acquisition of rights of use and exploitation of the services of the studio in any case presupposes the full payment of the fees charged by the studio for this purpose. If the customer already uses the services of the studio before that date, this use is based on a loan relationship that can be revoked at any time.
- Changes or processing of services of the Studio, such as in particular their further development by the customer or by third parties acting for the studio, are only subject to the express consent of the Studio and , insofar as the services are protected by copyright, the author allowed.
- The use of the Studio’s services that goes beyond the original agreed purpose and scope of use requires the studio’s consent, regardless of whether this service is protected by copyright. For this purpose, the studio and the author are entitled to a separate appropriate remuneration.
- For the use of services of the studio or advertising materials for which the studio has developed conceptual or design templates, after the expiry of the agency contract – regardless of whether this service is protected by copyright or not – is also the Approval of the studio is required.
- For uses according to section 4. the Studio shall be entitled 1st year after the end of the contract, entitlement to the full agency remuneration agreed in the expired contract; In the second and third year 3rd year after the expiry of the contract, only half or a quarter of the remuneration agreed in the contract. From the forth year after the end of the contract, agency compensation is no longer payable.
- The customer shall be liable to the Studio for any unlawful use of twice the fee appropriate for such use.
- The studio is entitled to point out the studio and, if necessary, the creator on all advertising materials and in all advertising activities, without the customer being entitled to a fee.
- The studio is entitled to use its own advertising media and, in particular, on its internet website with name and company logo on the existing or former business relationship with the customer, subject to the possible written revocation of the customer at any time. (Reference note).
- The customer must immediately, at least within eight days after delivery/performance by the Studio, notify concealed defects in writing within eight days of the discovery of the defect; otherwise, the service is deemed to have been approved. In this case, the assertion of warranty and compensation claims as well as the right to appeal for error due to defects is excluded.
- In the case of justified and timely complaints of defects, the customer is entitled to improve or replace the delivery/service by the studio. The studio will rectify the defects within a reasonable period of time, with the customer allowing the studio to take all the measures necessary to investigate and rectify the defect. The studio is entitled to refuse to improve performance if it is impossible or a disproportionate expense for the studio. In this case, the customer is entitled to legal conversion or mitigation rights. In the event of improvement, it is the responsibility of the client to carry out the transmission of the defective (physical) item at his own expense.
- It is the responsibility of the contracting authority to carry out the verification of the performance for its legal, in particular competition, trademark, copyright and administrative admissibility. The studio is not liable to the customer for the correctness of content if it has been specified or approved by the customer.
- The warranty period is six months from delivery/performance. The right to regress the studio in accordance with § 933b (1) ABGB expires one year after delivery/performance. The customer is not entitled to withhold payments due to any mantails. The presumption provision of § 924 ABGB is excluded.
13. Liability and Product Liability
- In cases of slight negligence, the Studio and its employees, contractors or other vicarious agents (“People”) shall not be liable for any material or financial damage to the Customer, whether direct or indirect, , loss of profit or consequential damages, damages due to delay, impossibility, positive breach of claims, fault at the time of conclusion of the contract, due to defective or incomplete performance. The existence of gross negligence has to be proven by the injured party. To the extent that the liability of the studio is excluded or limited, this also applies to the personal liability of its “people.”
- Any liability of the Studio for claims made against the customer on the basis of the service provided by the Studio (e.g. advertising measure) is expressly excluded if the Studio has complied with its obligation to provide notice or if it does not recognize such a Was. In particular, the Studio shall not be liable for legal fees, the customer’s own attorneys’ fees or the costs of publication of judgments, as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the studio harmless in this regard.
- Claims for damages by the customer shall expire after six months from the knowledge of the damage, but at least after three years from the act of injury of the studio. Claims for damages are limited in amount with the net order value.
14. Data Protection (optical emphasis according to the judiciary)
The customer agrees that his personal data, namely name/company, profession, date of birth, company book number, representative powers, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, UID number for the purpose of fulfilling the contract and support of the customer as well as for his own advertising purposes, such as the sending of offers, advertising brochures and newsletters (in paper and electronic form) as well as for the purpose of sending offers, advertising brochures and newsletters (in paper and electronic form) as well as for the purpose of Customers’ existing or former business relationship (reference note) are determined, stored and processed in an automation-supported manner. The client agrees that electronic mail will be sent to him for advertising purposes pending revocation.
This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details cited in the head of the Terms and Conditions.
15. Right to Apply
The contract and all reciprocal rights and obligations derived from it, as well as claims between the studio and the customer, are subject to Austrian substantive law to the exclusion of its referral standards and excluding the UN Sales Law.
16. Place of Performance and Place of Jurisdiction
- Place of performance is Vienna, Austria. In the case of shipping, the risk passes to the customer as soon as the studio has handed over the goods to the carrier chosen by him.
- The court responsible for the studio’s registered office shall be the place of jurisdiction for all disputes arising between the Studio and the Customer in connection with this contractual relationship. Notwithstanding this, the Studio is entitled to sue the Customer at its general place of jurisdiction.
- In so far as designations relating to natural persons are referred to only in male form in this Treaty, they refer to women and men in the same way. When applying the designation to certain natural persons, the specific form must be used.