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GENERAL TERMS AND CONDITIONS of Media Apparat GmbH
Zentagasse 32/7
1050 Vienna
AUSTRIA
info@mediaapparat.com
Managing Director: Andreas Göltl
FN360606d, Commercial Court Vienna
Chamber Membership Vienna Chamber of Commerce
VAT ID ATU66354367
1.1 Media Apparat GmbH (hereinafter "Agency") provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the Client, even if no explicit reference is made to them.
1.2 The version valid at the time of contract conclusion shall apply. Deviations from these as well as other supplementary agreements with the Client shall only be effective if confirmed in writing by the Agency.
1.3 Any terms and conditions of the Client, even if known, shall not be accepted unless expressly and separately agreed in writing in individual cases. The Agency expressly objects to the Client's GTC. No further objection by the Agency to the Client's GTC is required.
1.4 Changes to the GTC will be communicated to the Client and shall be deemed agreed if the Client does not object in writing within 14 days; the Client will 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 validity of the remaining provisions and the contracts concluded on their basis. The invalid provision shall be replaced by a valid provision that comes closest in meaning and purpose.
1.6 The Agency's offers are non-binding and without obligation.
The Agency expressly informs the Client prior to placing an order that the providers of "social media channels" (e.g. Facebook, hereinafter: Providers) reserve the right in their terms of use to reject or remove advertisements and advertising appearances for any reason. The Agency shall not be liable for any such actions by the Providers.
3. Concept and Idea Protection
If the potential Client has previously invited the Agency to create a concept, and the Agency accepts this invitation prior to the conclusion of the main contract, the following regulation shall apply:
3.1 The invitation and its acceptance by the Agency already establish a contractual relationship ("Pitching Contract"). The GTC also apply to this contract.
3.2 The potential Client acknowledges that the Agency provides cost-intensive preliminary services through the concept development, although the Client has not yet assumed any performance obligations.
3.3 The concept is protected by copyright law in its linguistic and graphic parts, insofar as these achieve the required level of originality. Use and modification of these parts without the Agency's consent is not permitted under copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the required level of originality and are therefore not protected by copyright law. These ideas are at the beginning of every creative process and can be considered the spark for everything subsequently produced and thus the origin of assets.
3.5 The potential Client undertakes to refrain from economically exploiting or using the creative advertising ideas presented by the Agency within the concept outside of a subsequently concluded main contract.
3.6 If the potential Client believes that ideas were presented by the Agency that the Client had already conceived prior to the presentation, the Client must inform the Agency by email within 14 days of the presentation, providing evidence with temporal attribution.
3.7 In the contrary case, the contracting parties shall assume that the Agency presented a new idea to the potential Client. If the idea is used by the Client, it shall be assumed that the Agency made a meritorious contribution.
3.8 The potential Client may free themselves from their obligations under this clause by paying reasonable compensation plus 20% VAT. Release shall only take effect upon full receipt of payment by the Agency.
4.1 The scope of services to be rendered is determined by the service description in the agency contract or any order confirmation by the Agency, as well as any briefing protocol ("Tender Documents"). Subsequent changes to the scope of services require written agreement.
4.2 All services of the Agency (including preliminary drafts, sketches, finished artwork, proofs, blueprints, copies, colour prints, and electronic files) must be reviewed by the Client and approved within three business days of receipt. In the absence of timely approval, the services shall be deemed approved.
4.3 The Client shall provide the Agency with all information and documents required for the provision of services in a timely and complete manner. The Client shall inform the Agency of all circumstances relevant to the execution of the order, including those that only become apparent during execution.
4.4 The Client is further obligated to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights, identification rights, or other third-party rights (rights clearing) and guarantees that the documents are free of third-party rights.
5.1 The Agency is entitled, at its own discretion, to perform the service itself, to engage qualified third parties as vicarious agents for the provision of contractual services, and/or to substitute such services ("Third-Party Services").
5.2 The commissioning of third parties within the scope of third-party services shall be done either in the Agency's own name or in the name of the Client. The Agency shall carefully select such third parties and ensure that they possess the required professional qualifications.
5.3 Insofar as the Agency commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the Agency.
5.4 The Client shall assume obligations to third parties that extend beyond the contract term. This expressly applies also in the case of termination of the agency contract for good cause.
5.5 The Agency's artists and service providers are subject to a first-contact contract and shall – unless otherwise agreed – continue to be booked through the Agency. In the case of direct bookings by the Client, claims of the Agency in the amount of the usual agency fee shall arise.
6.1 Stated delivery or performance deadlines, unless expressly agreed as binding, are only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by the Agency.
6.2 If the Agency is in default, the Client may only withdraw from the contract after setting a reasonable written grace period of at least 14 days, which has expired without result. Claims for damages by the Client due to non-performance or delay are excluded.
7.1 The Agency is entitled to terminate the contract for good cause with immediate effect. Good cause exists in particular when
a) the performance becomes impossible for reasons attributable to the Client, or is further delayed despite a 14-day grace period;
b) the Client continues to breach material obligations under this contract, such as payment of a due amount or cooperation obligations, despite written warning with a 14-day grace period.
c) there are justified concerns regarding the Client's creditworthiness and the Client neither makes advance payments nor provides suitable security upon request by the Agency before the Agency's performance.
d) insolvency or composition proceedings are opened over the Client's assets, or an application for opening such proceedings is rejected due to insufficient assets, or the Client ceases payments.
7.2 The Client is entitled to terminate the contract for good cause without setting a grace period. Good cause exists in particular when the Agency continues to breach essential contractual obligations despite written warning with a reasonable grace period of at least 14 days.
8.1 Unless otherwise agreed, the Agency's fee entitlement arises for each individual service as soon as it has been rendered. The Agency is entitled to request advances to cover its expenses. For orders with an (annual) budget of €20,000 or more, or such orders that extend over a longer period, partial invoicing shall apply.
8.2 The fee is a net fee plus VAT at the statutory rate. In the absence of individual agreement, the Agency is entitled to a fee at the customary market rate for services rendered and the transfer of copyright and trademark usage rights.
8.3 All services of the Agency not expressly covered by the agreed fee shall be separately compensated. All cash expenses incurred by the Agency shall be reimbursed by the Client.
8.4 Cost estimates by the Agency are non-binding. If it becomes foreseeable that 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 approved by the Client.
8.5 For all work by the Agency that is not executed by the Client for whatever reason, the Agency shall receive the agreed compensation. The offsetting provision of § 1168 ABGB is excluded. Upon payment of the fee, the Client acquires rights to already completed work.
9.1 The fee is due immediately upon receipt of invoice without deduction, unless special payment conditions are agreed in writing in individual cases. This also applies to the re-invoicing of all cash expenses and other expenditures. Goods delivered by the Agency remain the Agency's property until full payment.
9.2 In the event of payment default, the statutory default interest applicable to business-to-business transactions shall apply. Furthermore, the Client undertakes to reimburse the Agency for dunning and collection costs incurred to the extent necessary for appropriate legal pursuit.
9.3 In the event of the Client's payment default, the Agency may immediately call due all services and partial services rendered within the framework of other contracts concluded with the Client.
9.4 Furthermore, the Agency is not obligated to render further services until the outstanding amount has been settled (right of retention). The obligation to pay compensation remains 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 of non-timely payment of partial amounts or ancillary claims (acceleration clause).
9.6 The Client is not entitled to offset its own claims against claims of the Agency, unless the Client's claim has been acknowledged in writing by the Agency or established by court.
9.7 Unless other payment terms are agreed, 50% advance payment upon acceptance of the offer and 50% payment upon delivery shall apply.
10.1 Unless otherwise agreed, the following cancellation conditions shall apply:
a) 100% of services already rendered at the time of cancellation;
b) 50% of the project/implementation fee up to 4 weeks before the event or implementation start, if this amount exceeds the services rendered up to the cancellation date;
c) 75% of the project/implementation fee between 4 weeks and 2 weeks before the event or implementation start, if this amount exceeds the services rendered up to the cancellation date;
d) 100% of the project/implementation fee from 2 weeks before the event or implementation start;
e) 100% of third-party services already paid or ordered and no longer cancellable at the time of cancellation, or in the case that cancellation is possible, 100% of the cancellation fee;
11.1 All services of the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, finished artwork, concepts, negatives, slides), including individual parts thereof, remain the property of the Agency, as do individual workpieces and original drafts.
11.2 Modifications or adaptations of Agency services, including their further development by the Client or third parties working for the Client, are only permissible with the express consent of the Agency and – insofar as the services are protected by copyright – of the author.
11.3 For use of Agency services beyond the originally agreed purpose and scope – regardless of whether such services are protected by copyright – the Agency's consent is required. The Agency and the author are entitled to separate appropriate compensation for this.
11.4 For use of Agency services or advertising materials for which the Agency has developed conceptual or design templates after expiry of the agency contract – regardless of whether these services are protected by copyright or not – the Agency's consent is also required.
11.5 For uses pursuant to paragraph 4, the Agency is entitled to the full agency fee agreed in the expired contract in the 1st year after contract end. In the 2nd or 3rd year after contract expiry, only half or a quarter of the fee agreed in the contract. From the 4th year onwards, no fee is due.
11.6 The Client shall be liable to the Agency for any unlawful use in double the amount of the appropriate fee for such use.
12.1 The Agency is entitled to appropriate compensation for participation in presentations, which in the absence of agreement shall at least cover the Agency's entire personnel and material costs for the presentation as well as the costs of all third-party services.
12.2 If the Agency does not receive an order after the presentation, all Agency services, in particular the presentation documents and their content, shall remain the Agency's property; the Client is not entitled to use them in any form; the documents must be returned immediately.
12.3 The Client is also prohibited from further using the ideas and concepts introduced during the presentation, regardless of whether they enjoy copyright protection. Payment of the presentation fee does not grant the Client any exploitation or usage rights.
12.4 If the ideas and concepts introduced during a presentation are not commissioned in the form presented by the Agency, the Agency is entitled to use these ideas and concepts elsewhere.
13.1 The Agency is entitled to reference the Agency and, where applicable, the author on all advertising materials and in all advertising campaigns, without the Client being entitled to compensation.
13.2 Subject to revocation in writing by the Client at any time, the Agency is entitled to reference the existing or former business relationship with the Client on its own advertising media, in particular on its website (reference note).
14.1 The Client must report any defects immediately, at the latest within eight days of delivery/service by the Agency, hidden defects within eight days of discovery, in writing describing the defect; otherwise the service shall be deemed approved.
14.2 In the case of justified and timely complaint, the Client is entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period.
14.3 It is also the Client's responsibility to review the service for its legal permissibility, particularly regarding competition, trademark, copyright, and administrative law. The Agency is only obligated to a rough review of legal permissibility.
14.4 The warranty period is six months from delivery/service. The right of recourse against the Agency pursuant to § 933b para 1 ABGB expires one year after delivery/service.
15.1 In cases of slight negligence, the liability of the Agency and its employees, contractors, or other vicarious agents ("People") for property or financial damages of the Client is excluded, regardless of whether these are direct or indirect damages, lost profits, or consequential damages.
15.2 Any liability of the Agency for claims raised against the Client based on the Agency's services (e.g. advertising measures) is expressly excluded if the Agency has fulfilled its duty to inform or if such duty was not recognisable to the Agency.
15.3 Damage claims by the Client lapse within six months of knowledge of the damage; in any case after three years from the Agency's breach. Damage claims are limited in amount to the net order value.
The Client agrees that their personal data (name/company, profession, date of birth, company register number, representation authority, contact person, business address and other addresses, telephone number, fax number, email address, bank details, credit card data, VAT number) may be collected and processed for contractual purposes.
This consent may be revoked at any time in writing by email, fax, or letter to the contact details stated in the header of the GTC.
The contract and all mutual rights, obligations, and claims derived therefrom between the Agency and the Client shall be governed by Austrian substantive law, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
18.1 The place of performance is the Agency's registered office. In the case of shipment, the risk passes to the Client as soon as the Agency has handed the goods over to the carrier of its choice.
18.2 The court having subject-matter jurisdiction at the Agency's registered office is agreed as the place of jurisdiction for all disputes arising between the Agency and the Client in connection with this contractual relationship.
18.3 Insofar as designations relating to natural persons are given in this contract only in the masculine form, they shall refer to women and men equally. When applying the designation to specific natural persons, the respective gender-specific form shall be used.
19.1 In the event that individual provisions of this agreement are wholly or partially invalid, or in the event that this agreement contains unintended gaps, the validity of the remaining provisions shall not be affected. In place of the invalid or missing provision, the provision that comes closest in meaning and purpose shall apply.