[Terms and Conditions]

joolz media

Julia Sereinig
 

Getreidegasse 11

9020 Klagenfurt
 

Tel: +43 681 20750048

E-Mail: hello@joolzmedia.com

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1. Scope, Conclusion of Contract

1.1    The advertising graphic designer Sereinig Julia / joolz media (hereinafter "Agency") provides its 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 apply exclusively to relationships with entrepreneurs, i.e., B2B.

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

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1.3    Any terms and conditions of the customer are not accepted, even if known, unless expressly and in writing agreed otherwise in individual cases. The Agency expressly contradicts the customer's terms and conditions. There is no need for further objection by the Agency to the customer's terms and conditions.

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1.4    Changes to the GTC will be notified to the customer and deemed agreed if the customer does not object to the amended GTC in writing within 14 days; the customer will be expressly informed of the significance of silence and the specific changed clauses in the notification. This approval fiction does not apply to changes to essential service contents and fees.

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1.5    If individual provisions of these General Terms and Conditions are or become invalid, this shall not affect the validity of the remaining provisions and contracts concluded on the basis thereof. The invalid provision shall be replaced by an effective provision that comes closest to its meaning and purpose.

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1.6    The offers of the Agency are non-binding and subject to change.

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2.    Social Media Channels

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The agency expressly informs the customer before placing 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 appearances for any reason. The providers are therefore not obligated to forward content and information to users. There is therefore the risk, not calculable by the agency, that advertisements and appearances may be removed without cause. In the event of a complaint from another user, the providers do allow the possibility of a rebuttal, but even in this case, the content is immediately removed. Reinstating the original lawful state may take some time in this case. The agency operates on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer's order on them. With the placement of the order, the customer expressly acknowledges that these terms of use 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 currently valid terms of use and the easy possibility for any user to claim violations of rights and thus achieve the removal of content, the agency cannot guarantee that the commissioned campaign will be accessible at all times.

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3. Concept and Idea Protection

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If the potential customer has already invited the agency to create a concept in advance, and the agency complies with this invitation before the conclusion of the main contract, the following regulations apply:

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3.1 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.

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3.2 The potential customer acknowledges that the agency is already providing cost-intensive preliminary services with the development of the concept, even though the customer has not yet assumed any obligations.

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3.3 The concept, in its linguistic and graphic parts reaching the level of a work, is subject to protection under copyright law. The potential customer is not permitted to use or modify these parts without the consent of the agency, based on copyright law alone.

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3.4 The concept also contains advertising-relevant ideas that do not reach the level of a work and thus do not enjoy the protection of copyright law. These ideas form the basis of every creative process and can be defined as the origin of marketing strategy, acting as the spark for all subsequently created material. Therefore, those elements of the concept that are distinctive and give the marketing strategy its characteristic imprint are protected. For the purposes of this agreement, ideas are considered to be advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach the level of a work.

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3.5 The potential customer undertakes to refrain from commercially exploiting or allowing the commercial exploitation of these creative advertising ideas presented by the agency within the framework of the concept outside the corrective of a main contract to be concluded later, or from using or allowing the use of them.

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3.6 If the potential customer believes that the agency has presented ideas to him that he had already come up with before the presentation, he must notify the agency of this by email within 14 days of the presentation, providing evidence allowing for a chronological assignment.

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3.7 Conversely, the contracting parties assume that the agency presented a new idea to the potential customer. If the customer uses the idea, it is assumed that the agency has made a valuable contribution.

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3.8 The potential customer can be released from his obligations under this point by paying reasonable compensation, which is calculated on a case-by-case basis, plus 20% value-added tax. The exemption becomes effective only after full receipt of payment of the compensation by the agency.

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4. Scope of Services, Order Processing, and Customer Cooperation Obligations

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4.1 The scope of services to be provided is determined by the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol ("Offer Documents"). Subsequent changes to the scope of services require written confirmation by the agency. Within the framework specified by the customer, the agency has creative freedom in fulfilling the order.

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4.2 All services provided by the agency (especially all drafts, sketches, final artwork, proofs, blueprints, copies, color prints, and electronic files) must be reviewed by the customer and approved by them within three working days of receipt by the customer. If the customer fails to provide feedback within this period, they are deemed approved by the customer.

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4.3 The customer will provide the agency with all necessary information and documents in a timely and complete manner for the provision of the service. They will inform the agency of all circumstances relevant to the execution of the order, even if these become known during the execution of the order. The customer bears the cost incurred by the repetition or delay of work due to their incorrect, incomplete, or subsequently changed information.

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4.4 Furthermore, the customer is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any third-party copyright, trademark, or other rights (rights clearance) and guarantees that the documents are free from third-party rights and can therefore be used for the intended purpose. In the event of slight negligence or after fulfilling its duty to warn – in any case, in the internal relationship with the customer – the agency is not liable for any infringement of such third-party rights by the documents provided. If the agency is held liable by a third party for such infringement, the customer indemnifies and holds the agency harmless; the customer must compensate the agency for any disadvantages arising from third-party claims, especially the costs of appropriate legal representation. The customer agrees to assist the agency in defending against any third-party claims and will provide all documents to the agency without being asked.

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5. Outsourced Services / Commissioning of Third Parties

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5.1 The agency is entitled, at its discretion, to perform the service itself, to engage knowledgeable third parties as vicarious agents in the provision of contractual services, and/or to substitute such services ("outsourced service").

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5.2 The commissioning of third parties as part of an outsourced service is either done in the agency's own name or on behalf of the customer, the latter after prior notification to the customer. The agency will carefully select these third parties and ensure that they have the required professional qualifications.

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5.3 The customer is obligated to fulfill obligations towards third parties that have been disclosed to the customer and that extend beyond the duration of the contract. This explicitly applies even in the event of termination of the agency contract for good cause.

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6. Deadlines

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6.1 Specified delivery or performance deadlines, unless expressly agreed as binding, are only approximate and non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by the agency.

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6.2 If the delivery/performance of the agency is delayed due to reasons beyond its control, such as force majeure and other unforeseeable events that cannot be reasonably avoided, the obligations to perform are suspended for the duration and extent of the impediment, and the deadlines are extended accordingly. If such delays persist for more than two months, the customer and the agency are entitled to terminate the contract.

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6.3 If the agency is in default, the customer may only withdraw from the contract after giving the agency a written reasonable grace period of at least 14 days, which has elapsed without result. Claims for damages by the customer due to non-performance or default are excluded, except in cases of proven intent or gross negligence.

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7. Early Termination

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7.1 The agency is entitled to terminate the contract with immediate effect for important reasons. Important reasons include, in particular:

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a) The execution of the service becomes impossible for reasons attributable to the customer or is further delayed despite setting a deadline of 14 days;

b) The customer continuously violates essential obligations under this contract, such as payment of a due amount or cooperation obligations, despite written warning with a deadline of 14 days;

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

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7.2 The customer is entitled to terminate the contract without setting a deadline for important reasons. Important reasons include, in particular, if the agency continuously violates essential provisions of this contract despite written warning with a reasonable deadline of at least 14 days to remedy the contractual breach.

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8. Fees

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8.1 Unless otherwise agreed, the agency's fee is due for each individual service as soon as it has been provided. The agency is entitled to request advances to cover its expenses.

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8.2 The fee is understood as 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 for the services provided and the transfer of copyright and trademark usage rights in the usual market amount.

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8.3 All services of the agency that are not explicitly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency are to be reimbursed by the customer.

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8.4 Estimates provided by the agency are non-binding. If it becomes apparent that the actual costs 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 approved by the customer if the customer does not object in writing within three working days of this notification and simultaneously provides less costly alternatives. If the cost overrun is up to 15%, separate notification is not required. This cost estimate overrun is deemed approved by the client from the outset.

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8.5 If the customer unilaterally changes or cancels commissioned work without involving the agency - without prejudice to ongoing general support from the agency - the customer must compensate the agency for the services rendered up to that point according to the fee agreement and reimburse all incurred costs. If the cancellation is not due to grossly negligent or willful breach of duty by the agency, the customer must additionally pay the entire fee (commission) agreed for this order, with exclusion of the set-off compensation under § 1168 AGBG. Furthermore, the agency must be indemnified against any claims by third parties, especially contractors of the agency. Upon payment of the fee, the customer does not acquire any usage rights to work already completed; rather, unexecuted concepts, drafts, and other documents must be promptly returned to the agency.

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9. Payment, Retention of Title

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 on an individual basis. This also applies to the reimbursement of all cash expenses and other expenditures. The goods delivered by the Agency remain the property of the Agency until full payment of the fee, including all ancillary liabilities.

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9.2 In the event of default in payment by the customer, the statutory default interest rates apply at the level applicable to business transactions. Furthermore, in case of default in payment, the customer undertakes to reimburse the Agency for the incurred reminder and collection expenses, to the extent necessary for appropriate legal enforcement. This includes at least the costs of two reminder letters at a market rate of at least €20.00 per reminder, as well as the costs of a reminder letter from a lawyer engaged in collection. The assertion of further rights and claims remains unaffected thereby.

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9.3 In the event of the customer's default in payment, the Agency may immediately demand payment of all services and partial services provided within the scope of other contracts concluded with the customer.

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9.4 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 thereby.

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9.5 If payment by installments has been agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt (loss of term) in the event of non-timely payment of installments or ancillary claims.

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9.6 The customer is not entitled to set off their own claims against claims of the Agency, unless the customer's claim has been acknowledged in writing by the Agency or has been judicially established.

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10. Ownership Rights and Copyright

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10.1 All services provided by the Agency, including those from presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, finished drawings, concepts, negatives, slides), as well as individual parts thereof, remain the property of the Agency, along with the individual workpieces and original designs, and can be reclaimed by the Agency at any time - especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use for the agreed purpose. In the absence of any other agreement, the customer may only use the services of the Agency in Austria. The acquisition of usage and exploitation rights to services of the Agency always requires the full payment of the fees invoiced by the Agency for this purpose. If the customer uses the services of the Agency before this point in time, this use is based on a revocable loan relationship.

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10.2 Changes or modifications to services of the Agency, especially their further development by the customer or by third parties acting on behalf of the customer, are only permissible with the express consent of the Agency and - to the extent that the services are protected by copyright - of the author. The handover of all so-called "open files" is expressly not part of the contract. The Agency is not obligated to hand over. That is to say, without the contractual assignment of usage rights, including for "electronic works," the client has no legal claim to them.

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10.3 For the use of services of the Agency that goes beyond the originally agreed purpose and scope of use, the consent of the Agency is required - regardless of whether this service is protected by copyright. The Agency and the author are entitled to a separate appropriate remuneration for this.

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10.4 For the use of services of the Agency or advertising materials for which the Agency has developed conceptual or design templates, the consent of the Agency is also necessary after the end of the agency contract, regardless of whether this service is protected by copyright or not.

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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 1st year after the contract has ended. In the 2nd or 3rd year after the expiration of the contract, only half or a quarter of the agreed fee in the contract is payable. From the 4th year after the end of the contract, no agency fee is payable anymore.

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

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11. Identification

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

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

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12. Warranty

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12.1 The customer must notify any defects immediately, but in any case within eight days of delivery/performance by the agency, and hidden defects within eight days of their discovery, in writing describing the defect; otherwise, any deviation from the service is deemed approved. In this case, the assertion of warranty and damages claims as well as the right to challenge errors due to defects are excluded.

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12.2 In the event of justified and timely notification of defects, the customer is entitled to improvement or replacement of the delivery/performance by the agency. The agency will remedy the defects within a reasonable period, provided that the customer enables the agency to take all necessary measures for inspection and defect rectification. The agency is entitled to refuse to improve the service if it is impossible or disproportionately costly for the agency. In this case, the customer has the statutory rights of conversion or reduction. In the event of improvement, it is the responsibility of the client to send the defective (physical) item at his own expense.

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12.3 It is also the client's responsibility to check the service for its legal, in particular, competition, trademark, copyright, and administrative law compliance. The agency is only obliged to perform a rough check of legal admissibility. In the event of slight negligence or after fulfilling any warning obligation towards the customer, the agency is not liable for the legal admissibility of content if it has been specified or approved by the customer.

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12.4 The warranty period is six months from delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 of the Austrian General Civil Code (ABGB) 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 or financial damages to the customer is excluded, regardless of whether it is direct or indirect damages, loss of profit, consequential damages, damages due to delay, impossibility, positive breach of obligation, fault in conclusion of contract, or due to defective or incomplete performance. The injured party must prove gross negligence. To the extent that the liability of the agency is excluded or limited, this also applies to the personal liability of its "people".

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13.2    Any liability of the agency for claims arising from the services provided by the agency (e.g., advertising measures) against the customer is expressly excluded if the agency has fulfilled its duty to inform or if such duty was not recognizable to it, notwithstanding slight negligence. In particular, the agency is not liable for legal costs, the customer's own attorney's fees, or costs of judgment publications, as well as for any damages claims or other claims by third parties; the customer shall indemnify and hold the agency harmless in this regard.

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

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14. Applicable Law

The contract and all mutual rights, obligations, and claims derived therefrom between the agency and the customer are subject to Austrian substantive law, excluding its conflict of law rules and the UN Sales Convention.

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15. Place of Performance and Jurisdiction

15.1 The place of performance is the registered office of the agency. In the case of shipment, the risk passes to the customer as soon as the agency has handed over the goods to the carrier of its choice.

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15.2 The court having jurisdiction for all disputes arising between the agency and the customer in connection with this contractual relationship shall be the court having substantive jurisdiction at the registered office of the agency. Notwithstanding this, the agency is entitled to sue the customer at its general place of jurisdiction.

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15.3 Insofar as in this contract designations referring to natural persons are only mentioned in the masculine form, 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.