Terms and Conditions

1.1 Bildwerk Media OG (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 express reference is made to them.

1.2 The version valid at the time of conclusion of the contract shall apply. Deviations from these terms and conditions, as well as any supplementary agreements with the Client, are only effective if confirmed in writing by the Agency.

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

1.4 Changes to these General Terms and Conditions will be communicated to the Client and shall be deemed agreed upon if the Client does not object to the amended terms and conditions in writing within 14 days; the Client is expressly advised 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 the basis thereof. The invalid provision shall be replaced by a valid one that most closely approximates the original intent and purpose.

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

The Agency expressly informs the Client prior to the placement of 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 promotional content for any reason. The providers are therefore not obligated to forward content and information to users. There is thus a risk, which the Agency cannot predict, that advertisements and promotional content may be removed without cause. In the event of a complaint from another user, the providers do grant the opportunity to submit a counterstatement; however, even in this case, the content is removed immediately. Restoring the original, lawful status may take some time in this case. The Agency operates on the basis of these providers’ Terms of Use, over which it has no influence, and also bases a client’s order on them. By placing the order, the client 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 assignment to the best of its knowledge and belief and to comply with the guidelines of social media platforms. However, due to the currently applicable terms of use and the ease with which any user can allege a violation of rights and thereby have content removed, the agency cannot guarantee that the commissioned campaign will be accessible at all times.

If the prospective client has already invited the agency to develop a concept in advance, and the agency accepts this invitation prior to the conclusion of the main contract, the following provisions shall apply:

3.1 The mere act of the invitation and the agency’s acceptance thereof establishes a contractual relationship between the prospective client and the agency (“Pitching Agreement”). These General Terms and Conditions also form the basis of this agreement.

3.2 The prospective client acknowledges that the agency is already providing costly preliminary services by developing the concept, even though the prospective client has not yet assumed any performance obligations.

3.3 The linguistic and graphic elements of the concept, to the extent that they constitute a work of authorship, are protected under copyright law. The potential client is not permitted to use or modify these elements without the agency’s consent, solely on the basis of copyright law.

3.4 The concept also contains ideas relevant to advertising and implementation that do not meet the threshold for originality and are therefore not protected under copyright law. These ideas mark the beginning of every creative process and can be defined as the spark that ignites everything produced later, and thus as the origin of implementation processes and/or marketing strategies. Therefore, those elements of the concept that are unique and give the actual project implementation its distinctive character are protected. For the purposes of this agreement, “ideas” include, in particular, advertising slogans, advertising copy, technical concepts and systems, exhibition concepts, exhibit designs, graphics and illustrations, advertising materials, etc., even if they do not themselves meet the threshold of originality.

3.5 The prospective client undertakes to refrain from commercially exploiting or having exploited, or using or having used, the creative advertising and exhibit ideas presented by the agency as part of the concept outside the framework of a main contract to be concluded at a later date.

3.6 If the prospective client believes that the agency has presented ideas to them that they had already conceived prior to the presentation, they must notify the agency of this via email within 14 days of the date of the presentation, providing evidence that allows for a chronological determination.

3.7 Otherwise, the parties assume that the agency has presented the prospective client with an idea that is new to the client. If the client uses the idea, it is presumed that the agency has earned a fee for its services.

3.8 The prospective client may discharge itself from its obligations under this provision by paying reasonable compensation plus 20% sales tax. Discharge shall not take effect until the Agency has received full payment of the compensation.

4.1 The scope of the services to be provided is set forth in the service description in the agency agreement or in any order confirmation issued by the agency, as well as in any briefing notes (“Offer Documents”). Any subsequent changes to the scope of services require the agency’s written confirmation. Within the framework specified by the client, the agency has creative freedom in fulfilling the order.

4.2 All services provided by the agency (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color prints, and electronic files) must be reviewed by the client and approved by the client within three business days of receipt. If approval is not granted in a timely manner, they shall be deemed approved by the client.

4.3 The client shall provide the agency with all information and documents necessary for the performance of the service in a timely and complete manner. The client shall inform the agency of all circumstances relevant to the execution of the assignment, even if these become known only during the execution of the assignment. The client shall bear the costs incurred if work must be repeated or delayed by the agency as a result of the client’s incorrect, incomplete, or subsequently changed information.

4.4 The client is further obligated to review the materials provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, or other third-party rights (rights clearance) and guarantees that the materials are free of third-party rights and may therefore be used for the intended purpose. The Agency shall not be liable—in cases of mere negligence or after fulfilling its duty to warn, and in any event in its internal relationship with the Client—for any infringement of such third-party rights caused by the documents provided. If the Agency is held liable by a third party for such an infringement, the Client shall indemnify and hold the Agency harmless; and shall reimburse the Agency for all losses incurred as a result of such claims by third parties, in particular the costs of reasonable legal representation. The Client undertakes to assist the Agency in defending against any claims by third parties. The Client shall, without being asked, provide the Agency with all relevant documents for this purpose.

5.1 The Agency is entitled, at its sole discretion, to perform the services itself, to engage qualified third parties as vicarious agents in the performance of the contractual services, and/or to substitute such services (“Third-Party Services”).

5.2 The engagement of third parties in connection with third-party services shall be made either in the Agency’s own name or in the name of the Client. The Agency shall select such third parties with due care and ensure that they possess the necessary professional qualifications.

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

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

6.1 Unless expressly agreed to be binding, any stated delivery or performance deadlines are only approximate and non-binding. Binding deadlines must be set forth in writing or confirmed in writing by the Agency.

6.2 If the Agency’s delivery or performance is delayed for reasons beyond its control, such as force majeure or other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and to the extent of the impediment, and the deadlines shall be extended accordingly. If such delays last longer than two months, the client and the agency are entitled to withdraw from the contract.

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

7.1 The Agency is entitled to terminate the contract for good cause with immediate effect. Good cause shall be deemed to exist, in particular, if

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

b) the client continues to breach material obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning setting a grace period of 14 days;

c) there are justified concerns regarding the client’s creditworthiness and the client, upon the agency’s request, neither makes advance payments nor provides adequate security prior to the agency’s performance;

7.2 The client is entitled to terminate the contract for good cause without setting a grace period. Good cause shall be deemed to exist in particular if the Agency continues to breach material provisions of this contract despite a written warning setting a reasonable grace period of at least 14 days to remedy the breach.

8.1 Unless otherwise agreed, the Agency’s fee becomes due for each individual service as soon as it has been rendered. The Agency is entitled to request advance payments to cover its expenses. For orders with an (annual) budget of €1,000 or more, or those extending over a longer period, the Agency is entitled to issue interim invoices or advance invoices, or to request payments on account.

8.2 The fee is a net fee plus value-added tax at the statutory rate. In the absence of a specific agreement in individual cases, the Agency is entitled to a fee at the market rate for the services rendered and the granting of copyrights and trademark usage rights.

8.3 All services provided by the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash outlays incurred by the Agency shall be reimbursed by the Client.

8.4 The Agency’s cost estimates are non-binding. If it becomes apparent that the actual costs will exceed the Agency’s written estimate by more than 15%, the Agency will notify the Client of the higher costs. The cost overrun shall be deemed approved by the Client unless the Client objects in writing within three business days of receiving such notification and simultaneously proposes more cost-effective alternatives. If the cost overrun is up to 15%, no separate notification is required. This cost overrun is deemed approved by the client from the outset.

8.5 The Agency is entitled to the agreed fee for all work performed by the Agency that, for whatever reason, is not carried out by the client. The set-off provision of § 1168 ABGB is excluded. Upon payment of the fee, the client acquires no rights of use whatsoever to work already performed; rather, concepts, drafts, and other documents not executed must be returned to the agency immediately.

9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed upon in writing in individual cases. This also applies to the billing of all cash advances and other expenses. The goods delivered by the Agency remain the property of the Agency until full payment of the fee, including all ancillary liabilities, has been made.

9.2 In the event of late payment by the client, statutory default interest shall apply at the rate applicable to commercial transactions. Furthermore, in the event of late payment, the client undertakes to reimburse the agency for the resulting reminder and collection fees, to the extent they are necessary for appropriate legal action. This includes, in any case, the costs of two reminder letters at the market rate of currently at least €20.00 per reminder, as well as a reminder letter from a lawyer commissioned to collect the debt. The assertion of further rights and claims remains unaffected.

9.3 In the event of a delay in payment by the client, the agency may immediately demand payment for all services and partial services rendered under other contracts concluded with the client.

9.4 Furthermore, the Agency is not obligated to provide any further services until the outstanding amount has been paid (right of retention). The obligation to pay the fee remains unaffected.

9.5 If payment in installments has been agreed upon, 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 (loss of the benefit of the term).

9.6 The client is not entitled to set off its own claims against the agency’s claims, unless the client’s claim has been acknowledged in writing by the agency or established by a court.

10.1 All services provided by the Agency, including those resulting from presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final artwork, concepts, negatives, slides), as well as individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and original drafts, and may be reclaimed by the Agency at any time—in particular upon termination of the contractual relationship. By paying the fee, the Client acquires the right to use the work for the agreed-upon purpose. Unless otherwise agreed, the client may, however, use the agency’s services exclusively in Austria. The acquisition of rights of use and exploitation of the agency’s services is in any case contingent upon full payment of the fees invoiced by the agency for such services. If the client uses the agency’s services prior to this point in time, such use is based on a loan agreement that may be revoked at any time.

10.2 Modifications or alterations to the Agency’s services, including in particular their further development by the Client or by third parties acting on the Client’s behalf, are permitted only with the express consent of the Agency and—to the extent the services are protected by copyright—of the copyright holder.

10.3 The Agency’s consent is required for any use of the Agency’s services that goes beyond the originally agreed purpose and scope of use, regardless of whether such services are protected by copyright. The Agency and the copyright holder are entitled to separate, reasonable compensation for such use.

10.4 The Agency’s consent is also required for the use of the Agency’s services or advertising materials for which the Agency has developed conceptual or design templates after the expiration of the agency contract, regardless of whether such services are protected by copyright or not.

10.5 For uses pursuant to Section 4, the Agency is entitled to the full agency fee agreed upon in the expired contract during the first year following the contract’s expiration. In the second and third years following the contract’s expiration, the Agency is entitled to only half and one-quarter, respectively, of the fee agreed upon in the contract. Starting from the fourth year following the contract’s expiration, no further agency fee is payable.

10.6 The client shall be liable to the agency for any unauthorized use in an amount equal to twice the reasonable fee for such use.

11.1 The Agency is entitled to reference the Agency and, where applicable, the creator in all advertising materials and promotional activities without the Client being entitled to any compensation therefor.

11.2 Subject to the client’s right to revoke this in writing at any time, the Agency is entitled to refer to its existing or former business relationship with the client by name and company logo on its own advertising media and, in particular, on its website (reference).

12.1 The client must notify the agency in writing of any defects immediately, and in any case within eight days of delivery or performance by the agency; hidden defects must be reported within eight days of their discovery, with a description of the defect; otherwise, the service shall be deemed accepted. In this case, the assertion of warranty and damage claims, as well as the right to rescind the contract due to defects, is excluded.

12.2 In the event of a justified and timely notice of defects, the client is entitled to have the delivery or service rectified or replaced by the agency. The agency shall remedy the defects within a reasonable period, provided that the client enables the agency to take all measures necessary for investigation and rectification. The Agency is entitled to refuse to remedy the service if this is impossible or would entail a disproportionately high effort on the part of the Agency. In this case, the Client is entitled to the statutory rights of rescission or reduction. In the event of a remedy, it is the Client’s responsibility to arrange for the delivery of the defective (physical) item at their own expense.

12.3 It is also the client’s responsibility to verify that the service complies with legal requirements, particularly those relating to competition law, trademark law, copyright law, and administrative law. The Agency is only obligated to conduct a preliminary review of legal admissibility. In cases of slight negligence or after fulfilling any duty to warn the client, the Agency shall not be liable for the legal admissibility of content if such content was provided or approved by the client.

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

13.1 In cases of slight negligence, the Agency and its employees, contractors, or other vicarious agents (“Personnel”) shall not be liable for property damage or financial loss suffered by the Client, regardless of whether such damage consists of direct or indirect damage, lost profits, consequential damages resulting from defects, damages due to delay, impossibility, positive breach of contract, fault at the time of contract conclusion, or due to 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 “Personnel.”

13.2 Any liability of the Agency for claims brought against the Client based on the service provided by the Agency (e.g., advertising campaign) is expressly excluded if the Agency has fulfilled its duty to inform or if such a claim was not foreseeable to it, provided that slight negligence does not preclude liability. In particular, the Agency shall not be liable for litigation costs, the Client’s own attorney’s fees, or costs of publishing judgments, nor for any claims for damages or other claims by third parties; the Client shall indemnify and hold the Agency harmless in this regard.

13.3 The client’s claims for damages expire six months after becoming aware of the damage; in any event, however, three years after the agency’s breach. Claims for damages are limited to the net contract value.

14.1 The client agrees that their personal data—namely name/company name, occupation, date of birth, commercial register number, authority to represent the company, contact person, business address and other addresses, telephone number, fax number, email address, bank details, credit card information, VAT ID number—may be collected, stored, and processed by automated means for the purposes of contract fulfillment and client support, as well as for the company’s own advertising purposes, such as sending offers, promotional brochures, and newsletters (in paper and electronic form), and for the purpose of referencing the existing or former business relationship with the client (reference). The client agrees to receive electronic mail for advertising purposes until such consent is revoked.

14.2 This consent may be revoked at any time in writing via email, fax, or letter to the contact information listed in the header of the Terms and Conditions.

15.1 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 over the goods to the carrier of its choice.

15.2 The court having subject-matter jurisdiction over the Agency’s registered office is agreed upon as the venue for all legal disputes arising between the Agency and the Client in connection with this contractual relationship. Notwithstanding the foregoing, the Agency is entitled to sue the Client at the Client’s general place of jurisdiction.

15.3 To the extent that terms referring to natural persons are stated in the masculine form in this contract, they refer to both women and men equally. When applying the term to specific natural persons, the gender-specific form must be used.