AGB

1.1 Jakob Sedlar provides services exclusively based on 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 to B2B legal relationships.

1.2 The version valid at the time of the contract conclusion is decisive. Deviations and supplementary agreements with the customer are only effective if confirmed in writing by the agency.

1.3 Any terms and conditions of the customer are not accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The agency expressly rejects the customer's GTC. No further contradiction to the customer's GTC is required by the agency.

1.4 Changes to the GTC will be communicated to the customer and are deemed agreed if the customer does not object in writing within 14 days. The customer will be expressly informed of the significance of silence and the specifically changed clauses. This consent fiction does not apply to changes in essential service contents and fees.

1.5 If individual provisions of these General Terms and Conditions are invalid, it does not affect the binding nature of the remaining provisions and the contracts based on them. The invalid provision is to be replaced by a valid one that comes closest to the meaning and purpose.

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

The agency explicitly informs customers before placing an order that 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. Therefore, providers are not obligated to forward content and information to users. Consequently, there is an unpredictable risk for the agency that advertisements and appearances may be removed without reason.

If a complaint is made by another user, the providers allow for a counterstatement, but the content is immediately removed in such cases. Restoring the original, lawful state can take some time. The agency operates based on these providers' terms of use, which it cannot influence, and also bases the customer's order on them. By placing the order, the customer expressly acknowledges that these terms of use partially determine the rights and obligations of any contractual relationship.

The agency intends to execute the customer's order to the best of its knowledge and belief and to comply with the guidelines of "social media channels." However, due to the current terms of use and the ease with which any user can claim legal violations and thus achieve the removal of content, the agency cannot guarantee that the commissioned campaign will always be available.

If the potential client has invited the agency to create a concept in advance, and the agency agrees before the main contract is concluded, the following regulations apply:

3.1 By inviting the agency and the agency accepting, the potential client and the agency enter into a contractual relationship ("Pitching Contract"). These General Terms and Conditions also apply to this contract.

3.2 The potential client acknowledges that the agency incurs significant pre-costs by developing the concept, even though the client has not yet taken on any performance obligations.

3.3 The concept, in its linguistic and graphic parts, is protected under copyright law as long as it reaches the necessary level of originality. The potential client cannot use or modify these parts without the agency's consent based on copyright law.

3.4 Additionally, the concept contains advertising-relevant ideas that may not reach the level of originality and thus do not enjoy copyright protection. These ideas are the start of every creative process and can be defined as the spark of everything subsequently created, and therefore as the origin of the marketing strategy. Consequently, the elements of the concept that are distinctive and give the marketing strategy its characteristic imprint are protected. Advertising slogans, texts, graphics, illustrations, and materials are regarded as ideas under this agreement, even if they do not reach the level of originality.

3.5 The potential client commits to refraining from commercially exploiting or allowing the exploitation of these creative advertising ideas presented by the agency within the concept, outside the scope of a later concluded main contract, or using or allowing the use of them.

3.6 If the potential client believes the agency presented ideas that he had already conceived before the presentation, he must inform the agency within 14 days of the presentation via email, providing evidence that allows for temporal assignment.

3.7 Otherwise, the contracting parties assume that the agency has presented a new idea to the potential client. If the client uses the idea, it is assumed that the agency has earned merit in this process.

3.8 The potential client can release himself from his obligations under this point by paying reasonable compensation, which is calculated on a case-by-case basis, plus 20% VAT. The release only takes effect after the full payment of the compensation has been received by the agency.

4.1 The scope of services is outlined in the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol ("offer documents"). Any changes to the service content require written confirmation from the agency. Within the framework provided by the customer, the agency has creative freedom in fulfilling the order.

4.2 All services provided by the agency (including preliminary drafts, sketches, final drawings, brush prints, blueprints, copies, color prints, and electronic files) must be reviewed and approved by the customer within three working days of receipt. If this period expires without feedback, the services are considered approved.

4.3 The customer must provide the agency with all necessary information and documents for the service in a timely and complete manner. The customer will inform the agency of all circumstances significant to the order's execution, even if they become known during the process. The customer bears the costs if work needs to be repeated or delayed due to incorrect, incomplete, or subsequently changed information provided by the customer.

4.4 The customer is also obligated to check the documents provided for the order (photos, logos, etc.) for any third-party rights (e.g., copyright, trademark) and guarantees that the documents are free from such rights and can be used as intended. The agency is not liable for slight negligence or after fulfilling its duty to warn – in any case, in the internal relationship with the customer – for any infringement of third-party rights due to the provided documents. If the agency is claimed by a third party due to a legal violation, the customer will indemnify and hold the agency harmless and compensate for all disadvantages arising from third-party claims, particularly legal representation costs. The customer undertakes to support the agency in defending against any third-party claims by providing all necessary documents.

5.1 The agency is entitled, at its sole discretion, to perform the service itself, use knowledgeable third parties as vicarious agents, and/or substitute such services ("third-party services").

5.2 The commissioning of third parties for a third-party service is carried out either in its own name or in the name of the customer, after prior notice to the customer. The agency will carefully select these third parties and ensure they have the necessary professional qualifications.

5.3 The customer must assume obligations towards third parties that have been made known to them and that extend beyond the contract term. This applies even if the agency contract is terminated for good cause.

6.1 Unless expressly agreed as binding, stated delivery or performance deadlines are considered approximate and non-binding. Binding deadlines must be recorded or confirmed in writing by the agency.

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

6.3 If the agency is in default, the client can only withdraw from the contract after setting a reasonable grace period of at least 14 days in writing, and this period has passed without result. Claims for damages by the client due to non-fulfillment or delay are excluded, except in cases of proven intent or gross negligence.

7.1 The agency can terminate the contract immediately for important reasons. An important reason includes, but is not limited to, the following:

a) The service cannot be performed due to the customer's fault, or it is delayed further despite a 14-day grace period.

b) The customer continues to violate essential obligations, such as paying an outstanding amount or cooperating, despite a written warning with a 14-day grace period.

c) There are legitimate concerns about the customer's creditworthiness, and the customer neither makes advance payments at the agency's request nor provides adequate security before the agency's performance.

7.2 The customer can terminate the contract for important reasons without a grace period. An important reason includes if the agency continues to violate essential provisions of the contract despite a written warning with a reasonable grace period of at least 14 days to fix the breach.

8.1 Unless otherwise agreed, the agency's entitlement to fees arises for each individual service as soon as it is performed. The agency can request advance payments to cover its expenses. For order volumes with an (annual) budget of €100,000 or those extending over a longer period, the agency can issue interim or advance invoices or request partial payments.

8.2 The fee is understood as a net fee plus VAT at the statutory rate. If there is no specific agreement, the agency can charge a market rate fee for the services provided and the transfer of copyright and trademark usage rights.


8.3 All agency services not explicitly covered by the agreed fee will be billed separately. All cash expenses incurred by the agency must be reimbursed by the client.

8.4 Cost estimates provided by the agency are non-binding. If actual costs exceed the agency's written estimate by more than 15%, the agency will inform the client of the higher costs. The cost overrun is considered approved if the client does not object in writing within three working days and suggests more cost-effective alternatives. If the cost overrun is up to 15%, no separate notification is required and it is considered approved by the client from the start.

8.5 If the client changes or terminates commissioned work without involving the agency, the client must compensate the agency for the services rendered up to that point according to the fee agreement and reimburse all incurred costs. If the termination is not due to grossly negligent or intentional breach of duty by the agency, the client must also reimburse the agency for the entire agreed fee (commission) for this order, excluding the compensation under § 1168 AGBG. Furthermore, the client must indemnify and hold the agency harmless against any third-party claims, particularly from the agency's contractors. By paying the fee, the client does not acquire any usage rights to the work already performed; instead, any unfinished concepts, drafts, and other documents must be promptly returned to the agency.

9.1 The fee is due immediately upon receipt of the invoice without any deduction unless special payment terms are agreed in writing. This also applies to the reimbursement of all cash expenses and other costs. The goods delivered by the agency remain the property of the agency until full payment of the fee, including all ancillary liabilities.

9.2 In the event of delayed payment by the customer, the statutory default interest rates for business transactions shall apply. Furthermore, the customer must reimburse the agency for any necessary reminder and collection expenses incurred. This includes the costs of two reminder letters at a current market rate of at least €20.00 per reminder, as well as one reminder letter from a lawyer tasked with debt collection. The assertion of further rights and claims remains unaffected.

9.3 In the event of delayed payment, the agency may immediately declare due all services and partial services provided under other contracts with the customer.

9.4 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.

9.5 If payment by installments has been agreed, the agency reserves the right to demand immediate payment of the entire remaining debt if partial amounts or ancillary claims are not paid on time (loss of the term).

9.6 The customer is not entitled to offset their own claims against claims of the agency unless the customer'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 from presentations (e.g., suggestions, ideas, sketches, drafts, scribbles, final drawings, concepts, negatives, slides), as well as individual parts, workpieces, and draft originals, remain the property of the agency and can be reclaimed at any time, especially upon termination of the contractual relationship. The client acquires the right to use the services for the agreed-upon purpose by paying the fee. Unless otherwise agreed, the client may only use the agency's services within Austria. The acquisition of usage and exploitation rights to the agency's services always requires full payment of the fees invoiced. If the client uses the agency's services before this, such use is based on a revocable loan relationship at any time.

10.2 Changes or modifications to the agency's services, particularly their further development by the client or third parties, are only permissible with the express consent of the agency and, if the services are copyright-protected, the author. The release of all so-called "open files" is expressly not part of the contract. The agency is not obligated to release these. Without a contractual assignment of usage rights, including for "electronic works," the client has no legal claim to them.

10.3 For the use of the agency's services that goes beyond the originally agreed purpose and scope, the agency's consent is required regardless of whether this service is copyright-protected. For this, the agency and the author are entitled to a separate reasonable fee.

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 required after the expiry of the agency contract, regardless of whether this service is copyright-protected or not.

10.5 For uses according to paragraph 4, the agency is entitled to the full agency fee agreed upon in the expired contract in the first year after the contract ends. In the second and third years after the contract ends, only half and a quarter of the fee agreed upon in the contract, respectively, is payable. From the fourth year after the end of the contract, no agency fee is payable.

10.6 The client is liable to the agency for any unlawful use in double the amount of the appropriate fee for such use.

11.1 The agency is entitled to indicate itself and, if applicable, the author on all advertising materials and in all advertising measures, without the customer being entitled to any remuneration for this.

11.2 Subject to the customer's right to revoke at any time in writing, the agency is entitled to refer to the existing or former business relationship with the customer by name and company logo on its own advertising media, especially on its website (reference notice).

12.1 The customer must notify any defects immediately, and in any case within eight days after delivery/service by the agency. Hidden defects must be reported within eight days after their discovery, in writing with a description of the defect. Otherwise, any deviation of the service is considered approved. In this case, the assertion of warranty and damage claims, as well as the right to contest errors due to defects, are excluded.

12.2 In the case of justified and timely complaints, the customer has the right to improvement or replacement of the delivery/service by the agency. The agency will remedy the defects within a reasonable period, and the customer must enable the agency to take all necessary measures for investigation and defect correction. The agency can refuse to improve the service if it is impossible or involves disproportionate effort. In this case, the customer has the statutory rights of rescission or reduction. For improvements, the client must transmit the defective (physical) item at their own expense.

12.3 It is the client's responsibility to check the service for its legal admissibility, especially regarding competition, trademark, copyright, and administrative law. The agency is only obliged to perform a rough check of legal admissibility. The agency is not liable in the case of slight negligence or after fulfilling any warning obligation towards the customer 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 customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.

13.1 In cases of slight negligence, the agency and its employees, contractors, or other agents ("people") are excluded from liability for material or financial damages of the client. This applies whether the damages are direct or indirect, lost profits, consequential damages, delays, impossibility, positive breach of duty, or fault in contract conclusion due to defective or incomplete performance. The injured party must prove gross negligence. If 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 made against the client based on the service provided by the agency (e.g., advertising measure) is expressly excluded if the agency has fulfilled its duty to inform or if such was not recognizable to it, whereby slight negligence does not cause harm. The agency is not liable for legal costs, the client's own attorney fees, or the costs of judgment publications, as well as for any potential compensation claims or other third-party claims. The client must indemnify and hold the agency harmless in this regard.

13.3 Damage claims of the client expire six months after the knowledge of the damage; in any case, however, after three years from the agency's act of infringement. Damage claims are limited to the net order value.

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, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).

15.1   The place of performance is the location of the agency. In the case of shipment, the risk passes to the customer as soon as the agency hands over the goods to the carrier it has chosen.

15.2   The place of jurisdiction (The place of jurisdiction must be explicitly agreed upon again in the contractual agreement with the customer) for all legal disputes arising between the agency and the customer in connection with this contractual relationship shall be the court having jurisdiction over the location of the agency. Notwithstanding this, the agency is entitled to sue the customer at their general place of jurisdiction.

15.3   Insofar as designations referring to natural persons are only given in the male form in this contract, they refer to women and men equally. When applying the designation to specific natural persons, the gender-specific form must be used.