General Terms and Conditions
of Hans Sergej Pumper
Karl-Schönherr-Straße 13
5020 Salzburg
1. Validity, contract conclusion
1.1 Hans Sergej Pumper (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 customer, even if no express reference is made to them. The General Terms and Conditions are only applicable to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded is relevant. Deviations from these and other additional agreements with the customer are only effective if they are confirmed in writing by the agency.
1.3 Any terms and conditions of the customer will not be accepted, even if they are known, unless otherwise expressly agreed in writing in individual cases. The agency expressly contradicts the customer’s general terms and conditions. There is no need for the agency to object further to the customer’s general terms and conditions.
1.4 Changes to the General Terms and Conditions will be announced to the customer and will be deemed agreed if the customer does not object to the changed General Terms and Conditions in writing within 14 days; The customer will be expressly informed in the communication of the meaning of the silence and of the specific changed clauses. This fictional consent does not apply to changes to essential service content and fees.
1.5 If individual provisions of these General Terms and Conditions are invalid, this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision must be replaced by an effective one that comes closest to the meaning and purpose.
1.6 The agency’s offers are subject to change and non-binding.
2. Social media channels
Before placing the order, the agency expressly points out to the customer that the providers of “social media channels” (e.g. Facebook, hereinafter referred to as the provider) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason . The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which the agency cannot calculate, that advertisements and appearances will be removed for no reason. In the event of a complaint from another user, the providers grant the opportunity to respond, but in this case the content will also be removed immediately. In this case, regaining the original, legal status may take some time. The agency works on the basis of these providers’ terms of use, over which it has no influence, and also uses these as the basis for the customer’s order. By placing the order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The agency intends to carry out the client’s order to the best of its knowledge and belief and to comply with the guidelines for social media channels. However, due to the currently valid terms of use and the easy possibility for every user to allege legal violations and thus have the content removed, the agency cannot guarantee that the commissioned campaign will be available at any time.
3. Concept and idea protection
If the potential customer has already invited the agency to create a concept and the agency accepts this invitation before the main contract is concluded, the following rule applies:
3.1 As soon as the invitation is sent and the invitation is accepted by the agency, the potential customer and the agency enter into a contractual relationship (“pitching contract”). This contract is also based on the General Terms and Conditions.
3.2 The potential customer acknowledges that the agency already provides cost-intensive preliminary work when developing the concept, even though he has not yet assumed any service obligations himself.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, as long as they reach the height of the work. The potential customer is not permitted to use and edit these parts without the agency’s consent due to copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the heights 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 of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are considered ideas within the meaning of this agreement, even if they do not reach the height of the work.
3.5 The potential customer undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by the agency as part of the concept outside of the corrective of a main contract to be concluded later.
3.6 If the potential customer is of the opinion that the agency presented him with ideas that he had already thought of before the presentation, he must inform the agency by email within 14 days of the day of the presentation, citing evidence that allow a time allocation to be announced.
3.7 In the opposite case, the contracting parties assume that the agency has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the agency received credit for it.
3.8 The potential customer can release himself from his obligations under this point by paying appropriate compensation plus 20% sales tax. The exemption only comes into effect after the agency has received full payment of the compensation.
4. Scope of services, order processing and the customer’s obligation to cooperate
4.1 The scope of the services to be provided results from the service description in the agency contract or any order confirmation from the agency, as well as any briefing protocol (“offer documents”). Subsequent changes to the service content require written confirmation from the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
4.2 All services provided by the agency (in particular all preliminary drafts, sketches, final artwork, brush 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 passed without feedback from the customer, they are deemed to have been approved by the customer.
4.3 The customer will provide the agency with all information and documents required to provide the service in a timely and complete manner. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expense resulting from work having to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information.
4.4 The customer is further obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademarks, 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. In the event of slight negligence or after fulfilling its duty to warn – at least internally with the customer – the agency is not liable for a violation of such third party rights through documents provided. If a claim is made against the agency by a third party due to such a legal violation, the customer shall indemnify and hold the agency harmless in respect of legal proceedings and claims; He must compensate her for all disadvantages that she incurs as a result of making use of third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims from third parties. The customer provides the agency with all documents for this purpose without being asked.
5. Third-party services / commissioning of third parties
5.1 The agency is entitled, at its own discretion, to carry out the service itself, to use expert third parties as vicarious agents when providing contractual services and/or to substitute such services (“external services”).
5.2 Third parties are commissioned as part of a third-party service either in their own name or in the name of the customer, the latter after prior information to the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 The customer must assume obligations towards third parties that have been made known to the customer and that extend beyond the term of the contract. This also expressly applies in the event of termination of the agency contract for good cause.
6. Dates
6.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointment agreements must be recorded in writing or confirmed in writing by the agency.
6.2 If the agency’s delivery/service is delayed for reasons for which it is not responsible, such as force majeure events and other unforeseeable events that cannot be prevented by reasonable means, the service obligations are suspended for the duration and to the extent of the obstacle and are extended Deadlines accordingly. If such delays last more than two months, 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 giving 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-fulfillment or delay are excluded, unless evidence of intent or gross negligence is provided.
7. Early termination
7.1 The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if:
a) the execution of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days being set;
b) the customer continues to violate essential obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are legitimate concerns about the creditworthiness of the customer and the customer neither makes advance payments at the agency’s request nor provides suitable security before the agency provides the service;
7.2 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.
8. Fee
8.1 Unless otherwise agreed, the agency’s claim to a fee for each individual service arises as soon as it has been provided. The agency is entitled to request advance payments to cover its expenses. From an order volume with an (annual) budget of €10,000.00 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.
8.2 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 provided and the transfer of copyright and trademark rights of use.
8.3 All services provided by the agency that are not expressly covered by the agreed fee will be paid for separately. All cash expenses incurred by the agency must be reimbursed by the customer.
8.4 Cost estimates from the agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the agency 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 overrun by up to 15%, a separate notification is not necessary. This cost estimate excess is deemed to have been approved by the client from the outset.
8.5 If the customer unilaterally changes or cancels commissioned work without involving the agency – without prejudice to the agency’s other ongoing support – he must reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is 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 remuneration in accordance with Section 1168 AGBG is excluded. Furthermore, the agency must be indemnified and held harmless with regard to any claims by third parties, in particular those of the agency’s contractors. By paying the fee, the customer does not acquire any rights of use to work that has already been carried out; Concepts, drafts and other documents that have not been implemented must be returned to the agency immediately.
9. Payment, retention of ownership
9.1 The fee is due for payment immediately upon receipt of the invoice and without deductions, unless special payment conditions are agreed in writing in individual cases. This also applies to the recharging of all cash outlays and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all additional liabilities.
9.2 If the customer defaults on payment, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse the agency for any dunning and collection costs incurred, to the extent that they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at the usual market rate of currently at least €20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of late payment by the customer, the agency can immediately declare all services and partial services provided under other contracts concluded with the customer due.
9.4 Furthermore, the agency is not obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration remains unaffected.
9.5 If payment was agreed in installments, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or additional claims are not paid on time (loss of deadline).
9.6 The customer is not entitled to set off 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.
10. Ownership and Copyright
10.1 All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and original designs, remain the property of the agency and can can be requested back by the agency at any time – especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use it for the agreed purpose. 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 always requires full payment of the fees charged by the agency. If the customer already uses the agency’s services before this point in time, this use is based on a rental agreement that can be revoked at any time.
10.2 Changes or editing of the agency’s services, 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 – if the services are protected by copyright – of the author. The release of all so-called “Open files” are therefore expressly not part of the contract. The agency is not obliged to release it. This means that without a contractual assignment of the rights of use, including for “electronic work”, the client has no legal claim to this.
10.3 The agency’s consent is required for the use of the agency’s 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.
10.4 For the use of the agency’s services or advertising materials for which the agency has developed conceptual or design templates, the agency’s consent is also required after the expiry of the agency contract, regardless of whether this service is protected by copyright or not.
10.5 For uses in accordance with paragraph 4, the agency is entitled to the full agency fee agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, there is no longer any agency fee to be paid.
10.6 The customer is liable to the agency for any unlawful use in the amount of twice the fee appropriate for this use.
11. Labeling
11.1 The agency is entitled to refer to the agency and, if necessary, to the author on all advertising material 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 customer must report any defects immediately, in any case within eight days of delivery/service by the agency, and hidden defects within eight days of recognizing them, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and damage claims as well as the right to challenge errors due to defects is excluded.
12.2 In the event of justified and timely notification of defects, the customer has the right to have the delivery/service improved or replaced by the agency. The agency will correct the defects within a reasonable period of time, whereby the customer enables the agency to take all measures necessary to investigate and correct the 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 event of an improvement, the client is responsible for transmitting the defective (physical) item at his own expense.
12.3 It is also the responsibility of the client to check the service for legal admissibility, in particular 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 it was specified or approved by the customer.
12.4 The warranty period is six months from delivery/service. The right to recourse against the agency in accordance with Section 933b Paragraph 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of Section 924 AGBG 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 (“people”) for property damage or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage due to defects Default, impossibility, positive breach of contract, negligence in concluding the contract, defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that the agency’s liability is excluded or limited, this also applies to the personal liability of its “people”.
13.2 Any liability of the agency for claims that are raised against the customer due to 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 a duty was not apparent to it, in which case slight negligence doesn’t do any harm. In particular, the agency is not liable for legal costs, the customer’s own legal fees or costs of publication of judgments as well as for any claims for damages or other claims from third parties; The customer must indemnify and hold the agency harmless in this regard.
13.3 The customer’s claims for damages expire six months after becoming aware of the damage; in any case after three years from the agency’s infringing act. Claims for damages are limited to the net order value.
14. Applicable Law
The contract and all mutual rights and obligations as well as claims between the agency and the customer derived from it are subject to Austrian substantive law, excluding its reference norms and excluding the UN Convention on Contracts for the International Sale of Goods.
15. Place of fulfillment and place of jurisdiction
15.1 The place of performance is the agency’s headquarters. When shipping, the risk passes to the customer as soon as the agency has handed over the goods to the transport company chosen by them.
15.2 The place of jurisdiction is Salzburg City, Austria. For all legal disputes arising between the agency and the customer in connection with this contractual relationship, the court with subject matter jurisdiction for the agency’s registered office is agreed. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction.
15.3 If in this contract references to natural persons are only given in the male form, they refer to women and men in the same way. When applying the term to specific natural persons, the gender-specific form must be used.