General Terms & Conditions

1. Scope, Conclusion of Contract

1.1 Wolfgang Mair, hereinafter referred to as the Service Provider & Agency, provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Service Provider and the Client, even if no explicit reference is made to them.

1.2 The version valid at the time the contract is concluded shall be decisive. Deviations from these terms and any other supplementary agreements with the Client shall only be effective if confirmed in writing by the Service Provider.

1.3 Any terms and conditions of the Client shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The Service Provider expressly objects to the Client’s GTC. No further objection to the Client’s GTC by the Service Provider is required.

1.4 The service provider reserves the right to amend these Terms and Conditions with effect for future services. The current version is available on the service provider’s website. The version of the Terms and Conditions valid at the time of the respective engagement shall apply.

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

1.6 The Service Provider’s offers are subject to change and non-binding.

2. Social Media Channels

The Service Provider expressly informs the Client prior to placing an order that the 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 whatsoever. Accordingly, the Providers are not obliged to forward content and information to users. There is therefore a risk, which cannot be calculated by the Service Provider, that advertisements and appearances may be removed without cause.

In the event of a complaint by another user, the Providers generally grant the possibility of submitting a counterstatement; however, even in such cases, the content is removed immediately. The restoration of the original, lawful state may take some time in such cases.

The Service Provider operates on the basis of these terms of use of the Providers, over which it has no influence, and which also form the basis of the Client’s order. By placing the order, the Client expressly acknowledges that these terms of use (also) determine the rights and obligations of any contractual relationship.

The Service Provider intends to carry out the Client’s order to the best of its knowledge and belief and in compliance with the guidelines of “social media channels.” However, due to the currently valid terms of use and the ease with which any user can claim legal violations and thereby cause content to be removed, the Service Provider cannot guarantee that the commissioned campaign will be accessible at all times.

3. Concept and Idea Protection

If the prospective client has already invited the Service Provider in advance to prepare a concept, and the Service Provider complies with this invitation prior to the conclusion of the main contract, the following provisions shall apply:

3.1 By virtue of the invitation and its acceptance by the Service Provider, the prospective client and the Service Provider enter into a contractual relationship (“pitching agreement”). These General Terms and Conditions shall also apply to this agreement.

3.2 The prospective client acknowledges that the Service Provider incurs substantial preliminary costs in preparing the concept, even though the Service Provider has not yet assumed any contractual performance obligations.

3.3 The concept, in its linguistic and graphical components, insofar as they reach the threshold of originality, is protected under copyright law. Any use or modification of these parts without the Service Provider’s consent is not permitted to the prospective client, even by virtue of copyright law alone.

3.4 Furthermore, the concept contains advertising-relevant ideas that do not reach the threshold of originality and are therefore not protected by copyright law. These ideas represent the starting point of every creative process and may be regarded as the initial spark of everything subsequently developed, and thus as the origin of a marketing strategy. Therefore, those elements of the concept that are distinctive and give the marketing strategy its characteristic form are considered protected. For the purposes of this agreement, “ideas” shall include, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach the threshold of originality.

3.5 The prospective client undertakes to refrain from economically exploiting, or having exploited, or using, or having used, the creative advertising ideas presented by the Service Provider within the concept outside the framework of a main contract to be concluded at a later stage.

3.6 If the prospective client is of the opinion that the Service Provider has presented ideas that the client had already developed prior to the presentation, the client must notify the Service Provider within 14 days from the date of the presentation by email, providing evidence that allows for a clear chronological attribution.

3.7 Otherwise, the contracting parties shall assume that the Service Provider has presented a new idea to the prospective client. If the idea is used by the client, it shall be assumed that the Service Provider has contributed to its creation.

3.8 The prospective client may be released from their obligations under this clause by paying reasonable compensation. Such release shall only take effect upon full receipt of the compensation by the Service Provider.

4. Scope of Services, Order Processing, and Client’s Duties to Cooperate

4.1 The scope of services to be provided shall be determined by the service description in the contract or any order confirmation issued by the Service Provider, as well as any briefing protocol (“proposal documents”). Subsequent changes to the scope of services require written confirmation by the Service Provider. Within the framework specified by the Client, the Service Provider shall have creative freedom in performing the assignment.

4.2 All services provided by the Service Provider (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color prints, and electronic files) must be reviewed by the Client and approved within three working days of receipt. If approval is not granted in time, they shall be deemed approved by the Client.

4.3 The Client shall provide the Service Provider, in a timely and complete manner, with all information and documents necessary for the performance of the services. The Client shall inform the Service Provider of all circumstances relevant to the execution of the assignment, even if such circumstances become known only during the course of the project. The Client shall bear any additional costs arising from work having to be repeated or delayed due to incorrect, incomplete, or subsequently modified information provided by the Client. Delays or additional effort resulting from missing, delayed, or incomplete cooperation by the Client shall be charged based on actual time spent.

4.4 The Client is also obliged to examine the materials provided for the execution of the assignment (photos, logos, etc.) with regard to any copyright, trademark, or other third-party rights (rights clearance) and warrants that such materials are free of third-party rights and may therefore be used for the intended purpose. The Service Provider shall not be liable—except in cases of gross negligence or after fulfilling its duty to warn, and in any case in the internal relationship with the Client—for any infringement of such third-party rights caused by the provided materials. If the Service Provider is held liable by a third party due to such an infringement, the Client shall indemnify and hold the Service Provider harmless and compensate it for all disadvantages arising from such claims, including the costs of appropriate legal representation. The Client undertakes to support the Service Provider in defending against any such third-party claims and shall provide all necessary documents without being requested to do so.

4.5 Where services are performed on an hourly basis, the Service Provider does not owe a specific result but rather the professional execution of the agreed services. Billing shall be based on actual time spent, unless expressly agreed otherwise.

4.6 Cost estimates provided by the service provider are non-binding and for guidance purposes only. Unless a fixed price has been expressly agreed, billing shall be based on the actual time spent.

The actual effort required shall be determined by the current scope of the project. Changes or extensions to the scope of services shall result in a corresponding adjustment of the time and cost framework.

Any deviation from cost estimates shall not entitle the customer to reduce the agreed remuneration, provided that such deviation is due to changes or extensions of the scope of services or circumstances caused by the customer.

4.7 Corrections and change requests by the Client are not included in the original scope of services unless expressly agreed otherwise and shall be charged separately based on effort. Multiple revisions exceeding the agreed scope shall be considered additional services.

4.8 A project shall be deemed completed once the agreed services have been delivered and the Client does not commission any further adjustments. If no feedback is received within 7 days of delivery, the services shall be deemed accepted and the project completed. In the case of services billed on an hourly basis, approval serves solely for content review and has no effect on the entitlement to fees.

4.9 Project interruption: If a project is interrupted for more than 14 days at the request of the Client or due to lack of cooperation, the Service Provider is entitled to invoice for services already rendered and to reschedule the further course of the project. Any additional costs arising from this shall be charged based on actual time spent.

5. Third-Party Services / Engagement of Third Parties

5.1 The Service Provider shall be entitled, at its own discretion, to perform the services itself, to engage qualified third parties as vicarious agents in the provision of the contractual services, and/or to substitute such services (“third-party services”).

5.2 The engagement of third parties in the context of third-party services shall take place either in the Service Provider’s own name or in the name of the Client. The Service Provider shall carefully select such third parties and ensure that they possess the necessary professional qualifications.

5.3 To the extent that the Service Provider commissions necessary or agreed third-party services, the respective contractors shall not be considered vicarious agents of the Service Provider.

5.4 The Client shall assume any obligations toward third parties that extend beyond the term of the contract. This shall apply expressly even in the event of termination of the contract for good cause.

6. Deadlines

6.1 Delivery or performance deadlines stated shall be regarded as approximate and non-binding unless expressly agreed as binding. Binding deadlines must be set out in writing or confirmed in writing by the Service Provider.

6.2 If the Service Provider’s delivery/performance is delayed due to reasons beyond its control, such as force majeure or other unforeseeable events that cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment, and the deadlines shall be extended accordingly. If such delays persist for more than two months, both the Client and the Service Provider shall be entitled to withdraw from the contract.

6.3 If the Service Provider is in default, the Client may only withdraw from the contract after granting the Service Provider a reasonable grace period of at least 14 days in writing, and such period has expired without result. Claims for damages by the Client due to non-performance or delay are excluded, except in cases of intent or gross negligence.

7. Early Termination

7.1 The Service Provider shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall exist in particular if:

a) the performance of the services becomes impossible for reasons attributable to the Client, or is further delayed despite the granting of a grace period of 14 days;

b) the Client repeatedly breaches essential obligations under this contract, such as payment of an amount due or duties to cooperate, despite written notice and the granting of a grace period of 14 days;

c) justified concerns regarding the Client’s creditworthiness arise and the Client, upon request by the Agency, neither makes advance payments nor provides adequate security prior to performance by the Agency.

7.2 The Client shall be entitled to terminate the contract for good cause without granting a grace period. Good cause shall exist in particular if the Agency repeatedly breaches essential provisions of this contract despite written notice and the granting of a reasonable grace period of at least 14 days to remedy the breach.

8. Fees

8.1 Unless otherwise agreed, the Agency’s entitlement to fees shall arise for each individual service as soon as it has been rendered. The Service Provider shall be entitled to request advance payments to cover its expenses, as well as to issue interim invoices or request payments on account.

8.2 The fee shall be understood as a net fee. Any applicable value-added tax (VAT) shall be charged additionally at the statutory rate, if applicable.
In the absence of a specific agreement, the Agency shall be entitled to reasonable, customary market compensation for the services rendered as well as for the granting of usage rights under copyright and trademark law.

8.3 All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All out-of-pocket expenses incurred by the Agency shall be reimbursed by the Client.

8.4 Cost estimates of the Agency are non-binding. If it becomes apparent that the actual costs will exceed those estimated in writing by more than 15%, the Agency shall inform the Client of the higher costs. The cost overrun shall be deemed approved by the Client if the Client does not object in writing within three working days of such notice and simultaneously proposes more cost-effective alternatives. In the case of a cost overrun of up to 15%, no separate notification is required. Such cost overruns shall be deemed approved by the Client from the outset.

8.5 For all work carried out by the Agency which, for whatever reason, is not executed by the Client, the Agency shall still be entitled to the agreed remuneration. The application of § 1168 of the Austrian Civil Code (ABGB) is excluded. Upon payment of the remuneration, the Client shall not acquire any usage rights to work already performed; rather, any unused concepts, drafts, and other materials must be returned to the Agency without delay.

8.6 Services on an hourly basis
For services billed on an hourly basis, the entitlement to fees exists regardless of acceptance or the achievement of a specific project outcome. The decisive factor is the actual work performed.

9. Payment, Retention of Title

9.1 The fee shall be due for payment immediately upon receipt of the invoice and without any deductions, unless special payment terms have been agreed in writing in individual cases. This shall also apply to the recharging of all out-of-pocket expenses and other costs. Any goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all ancillary obligations, has been made.

9.2 In the event of default in payment by the Client, the statutory default interest applicable to business transactions shall apply. Furthermore, in the event of payment default, the Client undertakes to reimburse the Agency for any reminder and collection costs incurred, insofar as they are necessary for appropriate legal enforcement. This shall in any case include the costs of two reminder letters at customary market rates, currently at least €20.00 per reminder, as well as the cost of one reminder letter issued by a lawyer engaged for debt collection. The assertion of further rights and claims shall remain unaffected.

9.3 In the event of payment default by the Client, the Agency shall be entitled to declare all services and partial services rendered under other contracts concluded with the Client as immediately due and payable.

9.4 Furthermore, the Agency shall not be obliged to provide any further services until the outstanding amount has been settled (right of retention). The obligation to pay the agreed remuneration shall remain unaffected.

9.5 If payment in installments has been agreed, the Agency reserves the right, in the event of late payment of partial amounts or ancillary claims, to demand immediate payment of the entire outstanding debt (acceleration clause).

9.6 The Client shall not be entitled to set off its own claims against claims of the Agency unless the Client’s claim has been acknowledged in writing by the Agency or has been legally established by a court.

10. Ownership and Copyright

10.1 All services of the Agency, including those arising from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), as well as individual parts thereof, shall remain the property of the Agency, as shall the individual works and original drafts, and may be reclaimed by the Agency at any time—particularly upon termination of the contractual relationship. By paying the agreed fee, the Client acquires the right to use the services for the agreed purpose. In the absence of any agreement to the contrary, the Client may use the Agency’s services exclusively in Austria. The acquisition of usage and exploitation rights to the Agency’s services is in any case subject to full payment of the fees invoiced by the Agency. If the Client uses the Agency’s services prior to this point, such use shall be based on a revocable loan arrangement at any time.

10.2 Any modifications or adaptations of the Agency’s services, in particular further development by the Client or by third parties acting on the Client’s behalf, shall only be permitted with the express consent of the Agency and—where the services are protected by copyright—of the author.

10.3 Any use of the Agency’s services beyond the originally agreed purpose and scope of use shall require the consent of the Agency, regardless of whether such services are protected by copyright. The Agency and the author shall be entitled to separate reasonable remuneration for such use.

10.4 The use of the Agency’s services or advertising materials for which the Agency has developed conceptual or design templates shall, after expiry of the agency agreement—regardless of whether such services are protected by copyright—also require the consent of the Agency.

10.5 For uses pursuant to paragraph 4, the Agency shall be entitled, in the first year after termination of the contract, to the full agency remuneration agreed in the expired contract. In the second and third years after expiry of the contract, only half and one quarter, respectively, of the agreed remuneration shall be payable. From the fourth year after termination of the contract, no agency remuneration shall be payable.

10.6 The Client shall be liable to the Agency for any unauthorized use in an amount equal to twice the appropriate fee for such use.

11. Labeling
11.1 The agency is entitled to refer to the agency and, if necessary, to the author on all advertising materials and in all advertising measures, without the customer being entitled to any payment for this.

11.2 Subject to the customer's written revocation, which is possible at any time, the agency is entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).

12. Warranty

12.1 The Client must notify any defects without delay, in any case within eight days after delivery/performance by the Agency, and hidden defects within eight days after their discovery, in writing and with a description of the defect; otherwise, the service shall be deemed approved. In such case, the assertion of warranty and damage claims, as well as the right to rescind the contract on the grounds of error due to defects, shall be excluded.

12.2 In the case of justified and timely notification of defects, the Client shall be entitled to rectification or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period, whereby the Client shall enable the Agency to take all measures necessary for examination and remedy of the defects. The Agency shall be entitled to refuse rectification if it is impossible or would involve a disproportionately high effort for the Agency. In such case, the Client shall be entitled to the statutory rights of rescission or price reduction. In the case of rectification, the Client shall bear the cost of returning the defective (tangible) item.

12.3 The Client is also responsible for reviewing the service for its legal compliance, in particular with regard to competition law, trademark law, copyright law, and administrative law. The Agency is only obliged to carry out a general review of legal compliance. The Agency shall not be liable, in cases of slight negligence or after fulfilling any duty to warn the Client, for the legal admissibility of content if such content was specified or approved by the Client.

12.4 The warranty period shall be six months from delivery/performance. The right of recourse against the Agency pursuant to § 933b(1) of the Austrian Civil Code (ABGB) shall expire one year after delivery/performance. The Client shall not be entitled to withhold payments due to defects. The presumption rule of § 924 of the Austrian Civil Code (ABGB) is excluded.

13. Liability and Product Liability

13.1 In cases of slight negligence, liability of the Agency and its employees, contractors, or other vicarious agents (“personnel”) for material or financial damages of the Client is excluded, regardless of whether such damages are direct or indirect, including loss of profit, consequential damages, damages due to delay, impossibility, positive breach of contract, culpa in contrahendo, or due to defective or incomplete performance. The injured party shall bear the burden of proving gross negligence. To the extent that the Agency’s liability is excluded or limited, this shall also apply to the personal liability of its personnel.

13.2 Any liability of the Agency for claims raised against the Client on the basis of services provided by the Agency (e.g. advertising measures) is expressly excluded if the Agency has fulfilled its duty to warn or if such a duty was not apparent to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the Client’s own legal fees, costs of publication of judgments, or any claims for damages or other claims by third parties; the Client shall indemnify and hold the Agency harmless in this regard.

13.3 Claims for damages by the Client shall expire six months from the date the damage becomes known, but in any event no later than three years from the act causing the damage by the Agency. The amount of any damages shall be limited to the net order value.

14. Data Protection (visual emphasis in accordance with case law)

The Client agrees that their personal data, namely name/company, profession, date of birth, company registration number, authority to represent, contact person, business address and other addresses of the Client, telephone number, fax number, email address, bank details, credit card data, and VAT identification number, may be collected, stored, and processed by automated means for the purpose of contract performance and client support, as well as for the Agency’s own marketing purposes, for example for sending offers, advertising brochures, and newsletters (in paper and electronic form), and for the purpose of referring to an existing or former business relationship with the Client (reference notice). The Client agrees to receive electronic mail for marketing purposes until such consent is revoked.

This consent may be revoked at any time in writing by email, fax, or letter to the contact details provided in the header of these General Terms and Conditions.

15. Applicable Law

The contract and all mutual rights and obligations as well as claims arising therefrom between the Service Provider and the Client 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 (CISG).

16. Place of Performance and Jurisdiction

16.1 The place of performance shall be the registered office of the Service Provider. In the case of shipment, the risk shall pass to the Client as soon as the Service Provider has handed over the goods to the carrier selected by it.

16.2 The court having subject-matter jurisdiction for the registered office of the Service Provider shall be agreed as the place of jurisdiction for all disputes arising between the Service Provider and the Client in connection with this contractual relationship. Notwithstanding the foregoing, the Service Provider shall also be entitled to bring an action against the Client at the Client’s general place of jurisdiction.

16.3 Where this contract uses designations referring to natural persons only in the masculine form, such designations shall apply equally to all genders. When referring to specific natural persons, the respective gender-specific form shall be used.