Terms & Conditions
GENERAL TERMS AND CONDITIONS of ALBA Communications GmbH
FN 384615 k
Seilerstätte 7, 1010 Vienna, Austria
T: +43(1)353 6010
1. Validity, conclusion of contract
1.1 ALBA Communications GmbH (hereinafter referred to as “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 not expressly referred to. The GTC are only applicable for legal relationship with entrepreneurs, so B2B.
1.2 In each case, the valid version at the time of the conclusion of the contract is decisive. Deviations from these and other supplementary 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 are not accepted, even if they are known, unless otherwise agreed in individual cases and in writing. GTC of the customer contradicts the agency expressly. A further objection to the customer’s terms and conditions by the agency is not required.
1.4 Changes to the terms and conditions shall be notified to the customer and shall be deemed agreed if the customer does not object to the changed terms and conditions in writing within 14 days; The customer is expressly informed in the agreement on the meaning of the silence as well as on the concretely changed clauses. This approval fiction does not apply to the change of essential service contents and fees.
1.5 Should individual provisions of these General Terms and Conditions be ineffective, this shall not affect the liability of the remaining provisions and the contracts concluded on their basis. The ineffective provision shall be replaced by an effective one which comes closest to the purpose. 1.6 The offers of the agency are non-binding.
2. Social media channels
3. Concept and idea protection
If the potential customer has already invited the agency in advance to draw up a concept, and if the agency complies with this invitation before the conclusion of the main contract, the following provision applies:
3.1 Already by the invitation and the acceptance of the invitation by the agency, the potential customer and the agency enter into a contractual relationship (“pitching contract”). This contract is also based on the terms and conditions.
3.2 The potential customer acknowledges that the agency already provides cost-intensive intermediate services when the concept is drafted, even though it has not yet undertaken any performance obligations.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, as far as this work height is concerned. The use and processing of these parts without the consent of the agency is not permitted to potential customers under copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach a work height and thus do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that sparked everything later on and thus as the origin of a marketing strategy. Therefore, those elements of the concept are protected that are peculiar and that give the marketing strategy its distinctive character. For the purposes of this agreement, advertising slogans, advertising copy, graphics and illustrations, advertising material, etc. are considered as an idea, even if they do not reach a work height.
3.5 The potential customer undertakes not to commercially exploit, utilize or use any of the creative advertising ideas presented by the agency within the framework of the concept of a major contract to be concluded later.
3.6 If the potential customer believes that the agency has presented him with ideas that he has already come across prior to the presentation, he shall notify the agency within 14 days of the date of the presentation by e-mail with evidence that allow a temporal assignment to announce.
3.7 In the opposite case, the Parties assume that the Agency has presented the potential customer with a new idea. If the idea is used by the customer, then it can be assumed that the agency became meritorious.
3.8 The potential customer may waive his obligations under this point by paying a reasonable compensation plus 20% VAT. The exemption does not occur until full receipt of payment of the compensation to the Agency.
4. Scope of services, order processing and cooperation obligations of the customer
4.1 The scope of the services to be provided results from the terms of reference in the agency contract or any order confirmation by the Agency, as well as the possible briefing protocol (“Offer documents”). Subsequent changes to the service content require the written confirmation of the agency. Within the framework specified by the customer, there is freedom of the agency to fulfill the order.
4.2 All services of the agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) are to be checked by the customer and released by him within three working days from receipt by the customer. After expiry of this period without feedback from the customer, they are deemed approved by the customer.
4.3 The Client shall provide the Agency in a timely and complete manner with all information and documents necessary for the provision of the service. He will inform the Agency of all circumstances that are important for the execution of the order, even if they become known only during the execution of the order. The Customer shall bear the expense arising from the fact that work due to its incorrect, incomplete or subsequently changed information must be repeated by the Agency or delayed.
4.4 The customer is further obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of charge Rights of third parties and can therefore be used for the intended purpose. In the case of mere negligence or fulfillment of its obligation to warn – at least in the internal relationship with the customer – the agency is not liable for infringement of such rights of third parties by means of documents made available. If the agency is claimed by a third party for such an infringement, the customer shall indemnify and hold the agency harmless; he has to compensate the agency for any disadvantages caused by third-party claims, in particular the costs of adequate legal representation. The customer undertakes to assist the agency in warding off any claims of third parties. The customer will provide the agency with all documents without being requested to do so.
5. External services / commissioning of third parties
5.1 The Agency is entitled, at its own discretion, to carry out the service itself, to use knowledgeable third parties as vicarious agents in the provision of contractual services and / or to substitute such services (“external service”).
5.2 The commissioning of third parties in the context of a third party service takes place either in own name or on behalf of the customer, the latter after previous information to the customer. The agency will carefully select this third party and ensure that it has the required professional qualifications.
5.3 The customer must enter into obligations to third parties, which were made known to the customer and which go beyond the contract period. This also applies in the case of a termination of the agency contract for good cause.
6.1 Specified delivery or service periods are, unless expressly agreed as binding, only as approximate and non-binding. Binding appointments must be recorded in writing or confirmed by the agency in writing.
6.2 If the delivery / service of the Agency is delayed for reasons for which it is not responsible, e.g. Events of force majeure and other unforeseeable events that can not be avoided by reasonable means shall suspend the performance obligations for the duration and scope of the obstacle and extend the time limits accordingly. If such delays continue for more than two months, the customer and the agency are entitled to withdraw from the contract.
6.3 If the agency is in delay, the customer can withdraw from the contract only after he has set the agency in writing a reasonable grace period of at least 14 days and this has passed without success. Claims for damages of the customer due to non-performance or default are excluded, except in case of intent or gross negligence.
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) performance of the service is 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, despite a written warning with a grace period of 14 days, violating material obligations under this contract, such as payment of a due amount or obligation to cooperate.
c) there are legitimate concerns about the creditworthiness of the client and the latter does not make any advance payments at the request of the agency, nor does it provide adequate security before the Agency has provided its services;
7.2 The customer is entitled to terminate the contract for important reasons without granting a grace period. An important reason exists in particular if the Agency, despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract, violates essential provisions of this contract.
8.1 Unless otherwise agreed, the agency’s fee for each individual service arises as soon as it has been rendered. The Agency is entitled to demand advances to cover its expenses. From an order volume with an (annual) budget of € 1,000, or such, which extend over a longer period of time, the agency is entitled to create interim billing or forecasting or to call up payments on account.
8.2 The fee is understood as a net fee plus value added tax at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee in the usual market amount for the services provided and for the granting of the copyright and trademark rights of use.
8.3 All services of the agency, which are not expressly compensated by the agreed fee, will be paid separately. All expenses incurred by the agency are to be reimbursed by the customer.
8.4 Quotations from the agency are not binding. If it can be foreseen that the actual costs will exceed those estimated by the Agency in writing 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 announces cheaper alternatives. If it is a cost overrun of up to 15%, a separate communication is not required. This cost estimate overrun is considered by the client from the outset as approved.
8.5 If the client unilaterally modifies or terminates commissioned work without the involvement of the agency – without prejudice to the ongoing other support provided by the latter – he shall reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the demolition is not justified by a grossly negligent or intentional breach of duty by the agency, the customer must also reimburse the Agency for the entire fee agreed for this order (provision), whereby the crediting charge of § 1168 AGBG is excluded. Furthermore, the agency is to be made harmless and harmless with regard to any claims of third parties, in particular contractors of the agency. By paying the fee, the customer acquires no rights of use for work already performed; non-executed concepts, drafts and other documents must be returned to the Agency without delay.
9. Payment, retention of title
9.1 The fee is payable immediately upon receipt of the invoice and without deductions unless special terms of payment 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 full payment of the fee, including any ancillary liabilities.
9.2 In the event of default of payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. In addition, in the event of default of payment, the customer undertakes to reimburse the Agency for the resulting dunning and collection charges, insofar as they are necessary for the purpose of legal prosecution. In any case, this includes the costs of two reminder letters in the usual market amount 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 may immediately forfeit all services and partial services provided under other contracts concluded with the Customer.
9.4 Furthermore, the agency is not obliged to provide further services until the amount due has been paid (right of retention). The obligation to pay remuneration remains unaffected.
9.5 If payment has been agreed in installments, the Agency reserves the right, in the event of late payment of partial amounts or secondary claims, to demand immediate payment of all outstanding debt (loss of time).
9.6 The customer is not entitled to offset his own claims against claims of the agency, except the claim of the customer has been recognized by the Agency in writing or judicially.
10. Ownership and copyright
10.1 All services of the agency, including those from presentations (eg suggestions, ideas, sketches, preliminary drafts, scribbles, final artworks, concepts, negatives, slides), even individual parts thereof, as well as the individual workpieces and design originals remain the property of the agency and can be reclaimed by the Agency at any time, in particular at the termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the services of the agency in Austria. In any case, the acquisition of rights of use and exploitation of Agency services requires the full payment of the fees charged by the Agency. If the customer uses the services of the agency before this date, then this use is based on a revocable loan.
10.2 Modifications or processing of services of the agency, in particular their further development by the customer or third parties working for the latter, are only permitted with the explicit consent of the agency and – insofar as the services are protected by copyright – of the author. The publication of all so-called. “Open files” is thus expressly not part of the contract. The agency is not obliged to surrender. That without contractual assignment of the rights of use also for “electronic work” the client has no legal claim to it.
10.3 For the use of services of the Agency, which goes beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright, the consent of the Agency is required. For this, the agency and the author are entitled to a separate appropriate compensation.
10.4 For the use of services of the agency or of advertising material for which the agency has drafted conceptual or design templates, the agency’s consent is also required after expiry of the agency contract, irrespective 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 remuneration agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after expiry of the contract, only half or one quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract no agency fee is payable.
10.6 The customer is liable to the Agency for any unlawful use in duplicate of the appropriate fee for this use.
11.1 The Agency is entitled to refer to the Agency and, if applicable, to the author on all advertising materials and in all advertising measures, without the Customer being entitled to a claim for compensation.
11.2 Subject to the written revocation of the customer, which is possible at any time, the Agency is entitled to point out on its own advertising media and in particular on its Internet website with name and company logo on the existing or former business relationship (reference note).
12.1 The customer must report any defects immediately, in any event within eight days of delivery / performance by the agency, hidden defects within eight days after detection thereof, in writing under description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty claims and claims for damages as well as the right to appeal against errors due to defects are excluded.
12.2 In the case of justified and timely notice of defects, the customer has the right to improve or exchange the delivery / service by the agency. The Agency will remedy the deficiencies within a reasonable time, and the Client will allow the Agency all necessary measures to investigate and correct the defects. The Agency is entitled to refuse to improve performance if it is impossible or disproportionately expensive 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 client to carry out the transmission of the defective (physical) thing at his expense.
12.3 It is also the customer’s responsibility to check the performance of the service for its legal, in particular competition, trademark, copyright and administrative law permissibility. The agency is only obliged to conduct a rough review of legal admissibility. In the case of slight negligence or after fulfillment of any warning obligation towards the customer, the agency is not liable for the legal admissibility of contents if these have been specified or approved by the customer.
12.4 The warranty period is six months from delivery / service. The right to recourse to the agency in accordance with § 933b (1) AGBG expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.
13. Liability and product liability
13.1 In cases of slight negligence the liability of the Agency and its employees, contractors or other vicarious agents (“people”) for material or pecuniary loss of the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damages Default, impossibility, positive breach of contract, negligence on 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”.
13.2 Any liability of the Agency for claims that are made against the Customer due to the service rendered by the Agency (eg advertising) is expressly excluded if the Agency has fulfilled its obligation to notify or if such was not recognizable to it, whereby slight negligence does not hurt. In particular, the agency is not liable for litigation costs, the client’s own lawyer’s fees or the costs of publishing judgments as well as for any claims for damages or other claims of third parties; the customer must indemnify and hold the agency harmless.
13.3 Claims for damages of the customer expire in six months from knowledge of the damage; but in any case after three years from the injury act of the agency. Claims for damages are limited in amount to the net order value.
14. Applicable law
The contract and all derived reciprocal rights and obligations as well as claims between the agency and the customer are subject to the Austrian substantive law excluding its referral norms and to the exclusion of the UN sales law.
15. Place of performance and jurisdiction
15.1 Place of performance is the registered office of the agency. Upon shipment, the risk passes to the customer as soon as the agency has handed over the goods to their chosen carrier.
15.2 The place of jurisdiction for all disputes arising between the Agency and the Customer in connection with this contractual relationship is the court of competent jurisdiction for the seat of the Agency. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction.
15.3 Where the terms used in this Agreement refer to natural persons only in male form, they refer to women and men in the same way. When applying the name to certain natural persons, the gender-specific form must be used.
As of: 1/2018