Terms and Conditions
KREATE Advertising Agency
Owner: Kim Peisser
Geibelgasse 3/26, 1150 Vienna
+43 (0)664 930 12 666
UID number: ATU77870779
1 Validity, conclusion of contract
1.1 Kim Peisser, KREATE Werbeagentur (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 Client, even if no express reference is made to them.
1.2 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 which comes as close as possible to the meaning and purpose.
1.3 Amendments to the General Terms and Conditions shall be notified to the Client in writing, highlighting the amended clauses. If the Client does not object within two weeks, they shall be deemed to have been agreed.
1.4 The Agency's offers shall be subject to change and non-binding.
2 Protection of concepts and ideas
2.1 The linguistic, written and graphic parts of concepts and ideas shall be protected by copyright law insofar as they are equivalent to works of art. The potential client is not permitted to use or edit these parts without the Agency's consent, if only on the basis of copyright law.
2.2 The concept also contains ideas relevant to advertising that do not reach the level of a work and therefore 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 and thus the origin of marketing strategies. Therefore, those elements of the concept are protected which are unique and give the marketing strategy its characteristic character. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising media, etc. are considered to be ideas within the meaning of this agreement, even if they do not reach the level of a work.
2.3 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. scope of services, order processing and duties of the client to cooperate
3.1 The scope of the services to be rendered shall be defined in the service description or in any offer made by the Agency, as well as in any briefing protocol ("offer documents"). Subsequent changes to the content of the service shall require written confirmation by the Agency. Within the framework specified by the Client, the Agency shall have freedom of design in the fulfilment of the order.
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3.2 All services provided by the agency (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by the customer within three working days of receipt by the customer. After this period has elapsed without feedback from the customer, they are deemed to have been approved by the customer.
3.3 The customer shall make all information and documents necessary for the provision of the service available to the agency in a timely and complete manner. He will inform you of all circumstances that are important for the execution of the order, even if they only become known during the execution of the order. The customer bears the expenses incurred as a result of the fact that work has to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information.
3.4 The customer is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of are the rights of third parties and can therefore be used for the intended purpose. The agency is not liable for any infringement of such rights of third parties through the documents made available. If the agency is sued by a third party because of such an infringement, the customer shall indemnify and hold the agency harmless; he has to compensate her for all disadvantages that arise from claims by third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties. The customer shall make all documents available to the agency without being asked.
3.5 The agency is expressly not liable for content and is also not responsible for the legal review of imprint/privacy policy/terms and conditions. The customer is responsible for checking and providing the legal requirements. The contractor is in no way responsible for the legal security of the client's website. The client must ensure that the website meets the legal requirements.
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4. External services / commissioning third parties
4.1 The Agency is entitled, at its own discretion, to perform the service itself, to use knowledgeable third parties as vicarious agents for the provision of contractual services and/or to substitute such services ("external service").
4.2 The commissioning of third parties within the framework of an external service is carried out either in the customer's own name or in the name of the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
4.3 The customer has to enter into obligations towards third parties that go beyond the contract period. This also applies expressly in the event of termination of the agency contract for good cause.
5. Dates and Deadlines
5.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointments are to be recorded in writing or confirmed in writing by the agency.
5.2 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 with reasonable means, the performance obligations are suspended for the duration and to the extent of the obstacle and the deadlines accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
5.3 If the agency is in default, the customer can only withdraw from the contract after he has given the agency a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.
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6. Early Dissolution
6.1 The agency is entitled to terminate the contract for important reasons with immediate effect. An important reason exists in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days;
b) the customer continues to violate essential obligations under this contract, such as payment of an amount that has become due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns about the customer's creditworthiness and the customer does not make any advance payments at the request of the agency nor provide suitable security before the agency performs the service;
6.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists 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 breach of contract.
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7. Fee
7.1 Unless otherwise agreed, the Agency is entitled to a fee for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments to cover its expenses. From an order volume of € 1,000.00 or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to request payments on account.
7.2 The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee at the usual market rate for the services rendered and the transfer of the copyright and trademark rights of use.
7.3 All agency services that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency are to be reimbursed by the customer.
7.4 Cost estimates from the agency are non-binding. If it is foreseeable that the actual costs will exceed the agency's written estimate by more than 15%, the agency will inform 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 announce cheaper alternatives. If the costs are exceeded by up to 15%, a separate agreement is not required. Exceeding the cost estimate is deemed to have been approved by the customer from the outset.
7.5 If the customer unilaterally changes or cancels commissioned work without the agency's involvement - without prejudice to other ongoing support by the agency - he must reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not due to a grossly negligent or intentional breach of duty by the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the offsetting fee of § 1168 AGBG is excluded. Furthermore, the agency is to be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of the agency. By paying the fee, the customer does not acquire any rights of use for work already performed; Concepts, drafts and other documents that have not been implemented are to be returned to the agency immediately.
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8. Payment, retention of title
8.1 The fee is 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 also applies to the recharging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the payment has been made in full, including all ancillary obligations.
8.2 If the customer is in arrears with payment, the statutory interest on arrears 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 resulting dunning and collection expenses, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the usual market amount of currently at least € 10.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
8.3 If the customer defaults in payment, the agency can demand immediate payment of all services and partial services rendered as part of other contracts concluded with the customer.
8.4 Furthermore, the agency is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee remains unaffected.
8.5 If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
8.6 The customer is not entitled to offset his own claims against the agency's claims, unless the customer's claim has been recognized in writing by the agency or has been determined by a court.
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9. Ownership and Copyright
9.1 All services provided by the agency, including those from presentations (e.g. mood boards, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts), including individual parts thereof, remain the property of the agency, as do the individual workpieces and original drafts, and can be used by the agency can be reclaimed at any time - especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. However, unless otherwise agreed, the customer may only use the agency's services in Austria. The acquisition of rights of use and exploitation of the agency's services requires full payment of the fees charged by the agency. If the customer uses the agency's services before this point in time, this use is based on a loan relationship that can be revoked at any time.
9.2 Changes or processing of the agency's services, such as in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and - insofar as the services are protected by copyright - the author.
9.3 The consent of the agency is required for the use of agency services that go beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright. The agency and the author are entitled to separate appropriate remuneration for this.
9.4 For the use of agency services or advertising material for which the agency has developed conceptual or design templates, the consent of the agency is also required after the agency contract has expired, regardless of whether this service is protected by copyright or not.
9.5 For uses according to paragraph 4, the agency is entitled to the full agency remuneration agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after the end 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 fee is payable.
9.6 The customer is liable to the agency for any unlawful use in double the amount of the appropriate fee for this use.
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10. Marking
10.1 The agency is entitled to refer to the agency and possibly to the author on all advertising material and all advertising measures without the customer being entitled to a fee for this (e.g. in the footer and imprint of the website). The customer is not entitled to remove this notice or have it removed.
10.2 Subject to the written revocation of the customer, which is possible at any time, the agency is 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 and social media channels with the name and company logo (reference note).
11. Warranty
11.1 The customer must report any defects immediately, in any case within eight days after delivery/service by the agency, hidden defects within eight days after detection of the same, in writing with a description of the defect; otherwise the service is deemed to have been approved. In this case, the assertion of warranty and damage claims as well as the right to contest errors due to defects is excluded.
11.2 In the event of a justified and timely notice of defects, the customer has the right to have the delivery/service improved or replaced by the agency. The agency will rectify the defects within a reasonable period of time, whereby the customer enables the agency to take all measures necessary for the investigation and rectification of defects. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the case of improvement, it is up to the customer to transmit the defective (physical) item at his own expense.
11.3 It is also the client's responsibility to check the service for its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. The agency is only obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfilling any obligation to warn the customer, the agency is not liable for the legal admissibility of content if this was specified or approved by the customer.
11.4 The warranty period is six months from delivery/service. The right of recourse against the agency according to § 933b paragraph 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption of § 924 AGBG is excluded.
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12. Liability and Product Liability
12.1 In cases of slight negligence, the agency and its employees, contractors or other vicarious agents ("people") are not liable for property damage or financial loss suffered by the customer, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to default, impossibility, positive breach of contract, fault at the conclusion of the contract, due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. Insofar as the liability of the agency is excluded or limited, this also applies to the personal liability of its "people".
12.2 Any liability of the agency for claims raised against the customer on the basis of the service provided by the agency (e.g. advertising measure) is expressly excluded if the agency has fulfilled its obligation to inform or if such was not recognizable to it, with slight negligence no harm. In particular, the agency is not liable for legal costs, the customer's own legal fees or costs for the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer must indemnify and hold harmless the agency in this regard.
12.3 Claims for damages by the customer expire six months after knowledge of the damage; but in any case after three years from the infringing action of the agency. Claims for damages are limited to the amount of the net order value.
13. Privacy
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, UID number) automatically determined, stored and processed for the purpose of fulfilling the contract and supporting the customer as well as for the purpose of referring to the existing or previous business relationship with the customer (reference note).
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14. Governing Law
The contract and all mutual rights and obligations derived from it as well as claims between the agency and the customer are subject to Austrian substantive law to the exclusion of its reference standards and to the exclusion of the UN Sales Convention.
15. Place of Performance and Jurisdiction
15.1 The place of fulfillment is the registered office of the agency. In the case of shipping, the risk passes to the customer as soon as the agency has handed over the goods to the transport company it has chosen.
15.2 The place of jurisdiction 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 Insofar as designations relating to natural persons are only given in the masculine form in this contract, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form is to be used.