General Terms and Conditions of Creative Eagles KG
FN: 473384 d
Wagenmanngasse 4/29/2, 1230 Wien
- Validity, conclusion of contract
1.1 The Creative Eagles KG (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 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 confirmed by the Agency in writing.
1.3 Any terms and conditions of the customer will not, even with knowledge accepted, unless expressly and in writing in the individual case is agreed. The terms and conditions of the customer expressly contradicts the agency. One further objection to the customer's terms and conditions by the agency is not required.
1.4 Changes to the terms and conditions will be announced to the customer and are considered as agreed if the customer does not accept the amended GTC in writing within 14 days conflicts; On the importance of silence, the customer is in the Agreement expressly noted.
1.5 Should be individual provisions of these general Terms and conditions are invalid, this shall affect the liability of other provisions and the contracts concluded on their basis Not. The ineffective provision is by an effective, the meaning and Purpose comes closest to replacing.
1.6 The offers of the agency are non-binding.
- Social Media
- Concept and idea protection
If the potential customer has already invited the agency in advance, a concept and the agency comes this invitation before the conclusion of the According to the main contract, the following rule 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 Agreement"). This contract is also based on the terms and conditions.
3.2 The potential customer acknowledges that the agency is already using the Conceptual elaboration provides cost-intensive intermediate services, although he himself has not accepted any performance obligations.
3.3 The concept is subordinated in its linguistic and graphic parts so far reach this height, the protection of copyright law. One use and editing these parts without the consent of the agency is the potential Customers are not allowed under copyright law.
3.4 The concept also contains advertising relevant Ideas, that no Work height and thus not the protection of copyright law enjoy. These ideas are at the beginning of every creative process and can be considered as igniting spark everything later brought forth and thus as origin of Be defined marketing strategy. Therefore, those are elements of the concept protected, which are peculiar and the marketing strategy their give characteristic character. As an idea in the sense of this agreement in particular advertising slogans, copywriting, graphics and illustrations, Advertising material, etc., even if they do not reach a factory height.
3.5 The potential customer agrees to refrain from doing so Agency as part of the concept presented creative advertising ideas outside the corrective of a main contract to be concluded later economically to be used or recycled, or to be used or to be used.
3.6 Unless the potential customer thinks he has ideas from the agency presented to him before the presentation, so he has to inform the agency within 14 days after the day of the presentation E-mail quoting evidence showing a time allocation allow to announce.
3.7 In the contrary case, the contracting parties assume that the Agency the potential customer has presented a new idea for him. Will the idea used by the customer, it can be assumed that the agency became meritorious.
3.8 The potential customer may be free from his obligations from this point by paying a reasonable compensation plus 20% VAT to free. The exemption occurs only after full receipt of payment of Compensation at the agency.
- Scope of services, order processing and Co-operation obligations of the customer
4.1 The scope of the services to be provided results from the Description of services 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 by the agency. Inside of the customer given framework exists in the fulfillment of the contract freedom of design the agency.
4.2 All services provided by 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 by him within three Business days from receipt at the customer release. After expiry of this period without feedback from the customer, they are considered approved by the customer.
4.3 The client will contact the agency timely and complete all information and Make available documents necessary for the provision of the service are. He will inform you of all circumstances necessary for the implementation of the Orders are important, even if they are only during the implementation of the Order become known. The customer bears the effort that results that works as a result of its incorrect, incomplete or subsequent amended by the Agency, or delayed become.
4.4 The customer is further obliged to carry out the order for the execution of the order Provided documents (photos, logos, etc.) on any copyright, Trademark, trademark rights or other rights of third parties to examine (Rights clearing) and guarantees that the documents are free from third party rights and can therefore be used for the intended purpose. The Agency liable in case of mere negligence or after fulfillment of their warning obligation - at least in the internal relationship with the customer - not because of an injury such rights of third parties by means of documents provided. Will the Agency for such infringement by a third party the customer keeps the agency harmless and harmless; he has her to compensate for any disadvantages caused by third party claims incurred, in particular the costs of adequate legal representation. The customer agrees to the Agency in the defense of any To support claims of third parties. The customer represents the agency for this unsolicited all documents available.
- External services / commissioning of third parties
5.1 The Agency is free to choose the service itself carry out its work in the provision of contractual services knowledgeable third party to serve as vicarious agents and / or such To substitute services ("external service").
5.2 The commissioning of third parties in the context of a third party service takes place either in the own name or on behalf of the customer. The agency becomes this third party choose carefully and make sure that this is beyond the required professional qualification.
5.3 In obligations to third parties, over the contract period go out, the customer has to enter. This is also true in the case a cancellation of the agency contract for good cause.
6.1 Specified delivery or service periods apply, unless explicitly stated as binding, only as approximate and non-binding. binding Appointments must be recorded in writing or written by the agency to confirm.
6.2 Delayed delivery / performance of the agency for reasons that it does not represented, such as Events of force majeure and other unpredictable, with reasonable means unavoidable events, rest Performance obligations for the duration and scope of the obstacle and the deadlines are extended accordingly. If such delays more than lasting two months, the customer and the agency are entitled to cancel the contract withdraw.
6.3 If the agency is in default, then the customer can only from the contract resigning after giving the agency a reasonable period of grace in writing has set at least 14 days and this has passed fruitlessly. Claims for damages of the customer due to non-performance or default are excluded except in cases of intent or gross negligence Negligence.
- Premature resolution
7.1 The agency is entitled to terminate the contract for good cause Dissolve effect. An important reason exists in particular if
- a) the execution of the service Reasons that the customer is responsible, becomes impossible or despite settlement a grace period of 14 days is further delayed;
- b) the customer continued, despite written warning with a grace period of 14 days, against material obligations under this contract, such as Payment of one due amount or obligation to cooperate, violates.
- c) legitimate concerns regarding the The creditworthiness of the customer and this at the request of the agency neither Advance payments will provide adequate security even before the agency has provided their services making;
7.2 The customer is entitled to terminate the contract for important reasons Release deadline. An important reason, in particular, if the agency continued, despite a written warning with a reasonable Period of grace of at least 14 days to remedy the breach of contract material provisions of this contract.
8.1 Unless otherwise agreed, the fee claim of the agency for each individual service as soon as it has been provided. The agency is entitled to demand advances to cover their expenses. From one Order volume with an (annual) budget of € ............... .., or those that extend over a longer period, the Agency is entitled to To create interim billing or forecasting or on account payments retrieve.
8.2 The fee is understood as net fee plus VAT in statutory amount. In the absence of agreement in individual cases, the Agency has for the provided services and the provision of copyright and Trademark rights of use entitled to a fee in the market Height.
8.3 All services of the agency that are not expressly agreed by the Fees are paid, will be paid separately. All of the agency incurred cash expenses are to be replaced by the customer.
8.4 Quotations of the agency are not binding. If it is foreseeable that the actual costs estimated by the Agency in writing by more than 15%, the agency will inform the customer about the higher costs. The cost overrun is considered as approved by the customer if the customer fails within three working days of this notice in writing contradicts and at the same time announces cheaper alternatives. It is about a cost overrun of up to 15% is not a separate agreement required. This cost estimate is exceeded by the client of in the beginning as approved.
8.5 If the customer orders commissioned work without the involvement of the agency - without prejudice to ongoing other care by them - unilaterally changes or he has the agency according to the services provided until then to reimburse the fee agreement and reimburse all incurred costs. Unless the demolition is not caused by a grossly negligent or intentional Duty of duty of the agency is justified, the customer of the agency over it In addition, the entire fee agreed for this order (commission) refund, whereby the crediting fee of § 1168 AGBG is excluded. Furthermore, the agency is in relation to any claims of third parties, in particular contractors of the Agency to make harmless and without complaint. With the Payment of the fee, the customer acquires already performed work no rights of use; not executed concepts, drafts and others Documents must be returned to the agency without delay.
- Payment, retention of title
9.1 The fee is payable immediately upon receipt of invoice and without deductions, unless special conditions of payment have been agreed in writing in individual cases become. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by the agency remain until the full payment of the remuneration including all Ancillary liabilities owned by the agency.
9.2 In case of default of the customer, the statutory default interest in the for Entrepreneurship applicable amount. Furthermore, the customer is committed to the case of late payment, the agency the resulting dunning and collection charges, insofar as they are necessary for the purpose of legal prosecution replace. In any case, this includes the costs of two letters of formal notice current market level of currently at least € 20.00 per reminder and one Reminder of a lawyer responsible for recovery. The Assertion of further rights and claims remains unaffected.
9.3 In the event of default of payment of the customer, the Agency may, in the context other contracts concluded with the customer, services provided and Partial payments due immediately.
9.4 Furthermore, the agency is not obliged to provide additional services until Settlement of the outstanding amount to provide (right of retention). The Obligation to pay remains unaffected.
9.5 If the payment has been agreed in installments, the agency reserves the right to pay Case of non-timely payment of installments or ancillary claims the right to demand immediate payment of all outstanding debt (Forward loss).
9.6 The customer is not entitled with own claims against claims of Agency except the client's claim was charged by the agency recognized in writing or judicially determined.
- ownership and copyright
10.1 All services provided by the Agency, including those from presentations (e.g. Suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, Negatives, slides), even individual parts of them, remain just as the individual Workpieces and design originals owned by the agency and may be used by the Agency at any time - especially upon termination of the contractual relationship - be demanded back. The customer acquires the right by paying the fee the use for the agreed purpose. Unless otherwise stated However, the customer may only use the services of the agency in Use Austria. The acquisition of usage and exploitation rights Services of the agency in any case, the full payment of advance fees charged to the agency. Uses the customer already before this time, the services of the agency, it is based Use on a revocable loan.
10.2 Changes or processing of services of the agency, in particular their further development by the customer or by third parties working for him, are only with the express permission of the agency and - as far as the services protected by copyright - of the author.
10.3 For the use of services of the agency, beyond the original agreed purpose and scope of use is - regardless of whether this performance is copyrighted - the consent of the agency required. For the agency and the author is a separate reasonable remuneration too.
10.4 For the use of services of the agency or of advertising material for which the Agency has drafted conceptual or design templates, is after Expiration of the agency contract regardless of whether this service copyrighted or not, also the consent of the Agency necessary.
10.5 For uses in accordance with paragraph 4, the Agency will be in the 1st year after the end of the contract Entitlement to the full agency compensation agreed in the expired 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 there is no agency fee to pay.
10.6 The customer is liable to the Agency for any unlawful use in duplicate the appropriate fee for this use.
11.1 The agency is entitled to all advertising materials and advertising to mention the agency and, if necessary, the author, without the Customers are entitled to a remuneration claim.
11.2 The agency is subject to the written revocation possible at any time the customer is entitled to do so on their own advertising media and in particular on their own Internet website with name and company logo on the existing or existing customer to refer to previous business relationship (reference note).
12.1 The customer has any defects immediately, at least within eight Days after delivery / performance by the agency, hidden defects within eight days after recognition of the same, in writing under description of the defect display; otherwise the service is considered approved. In this case, the Assertion of warranty and damage claims as well as the law to avoid appeal for defects due to defects.
12.2 In the case of justified and timely notice of defects, the customer is entitled to the improvement or replacement of the delivery / service by the Agency. The Agency will remedy the deficiencies in a timely manner, whereby the client of the Agency will take all necessary measures to investigate and correct the defect allows. The agency is entitled to improve the performance too refuse if this is impossible or for the agency with one disproportionate effort. In this case, the customer the legal conversion or reduction rights. In the case of improvement it is the responsibility of the client to transmit the defective (physical) To do something at his expense.
12.3 It is also up to the client to check the performance on their behalf legal, especially competition, trademark, copyright and administrative admissibility. The agency is only one Rough test of legal admissibility required. The agency is liable in Case of slight negligence or after fulfillment of any warning obligation to the customer not for the legal admissibility of content, 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 against the agency according to § 933b Abs 1 ABGB expires Year after delivery / service. The customer is not entitled to payments because of To withhold complaints. The presumption rule of the § 924 ABGB becomes locked out.
- liability and product liability
13.1 In cases of slight negligence is a liability of the Agency and its Employees, contractors or other vicarious agents ("people") for Property damage or financial loss of the customer excluded, regardless of whether it is to direct or indirect damage, lost profits or Consequential damages, damages due to delay, impossibility, positive Defaults, negligence on conclusion of contract, due to defective or incomplete performance. The existence of gross negligence the injured party has to prove. As far as the liability of the agency excluded or limited, this also applies to the personal liability of their "people".
13.2 Any liability of the Agency for claims arising out of the Agency performance (such as advertising) against the customer expressly excluded if the agency complied with its obligation to inform is or was not recognizable for her, being slight negligence does not hurt. In particular, the agency is not liable for legal fees, own Legal fees of the customer or costs of judgment publications as well as for any claims for damages or other claims of third parties; the customer the Agency must indemnify and hold harmless in this respect.
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 Agency. Claims for damages are in the amount of the net order value limited.
- Data Protection
The customer agrees that his personal data, namely name / company, occupation, date of birth, Commercial register number, representation powers, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, Bank details, credit card details, UID number) for the purpose of Fulfillment of contract and customer care as well as for own advertising purposes, for example, to send offers, advertising leaflets and newsletters (in Paper and electronic form), as well as for the reference to the Customer existing or former business relationship (reference note) supported by automation, stored and processed.
The client is agree that electronic mail for promotional purposes until revoked is sent.
This approval can at any time in writing by e-mail, fax or letter to the head of the terms and conditions will be revoked.
- Applicable Law
Of 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 to the exclusion of its reference standards and under Exclusion of the UN Sales Convention.
- Place of fulfillment and jurisdiction
16.1 Place of fulfillment is the seat of the agency. With dispatch the danger goes on the Customer over, as soon as the agency the goods to the one chosen by her Transport company.
16.2 As the place of jurisdiction for all arising between the agency and the customer Litigation in connection with this contractual relationship will be for the registered office of the court of competent jurisdiction. Regardless of the agency is entitled to the customer at his general place of jurisdiction complain.
16.3 To the extent that this term refers to natural persons in this contract only in male form, they refer to women and men in same way. When applying the name to certain natural People must use the gender-specific form.
Additional information about the terms and conditions
for Digital Agencys
- The trade association Advertising & Market Communication issued by the Austrian Federal Economic Chamber "General Terms and Conditions" (GTC) are just a sample of which To provide clues and suggestions. It is therefore by no means Ensured that the sample terms and conditions in all details of each communications company be applied in the proposed form! Like every pattern, that too for the terms and conditions according to the specific requirements of each Company be supplemented or adapted. For example, if a company not only provides services, but also goods (e.g., software) provides, the terms and conditions will most likely be a retention of title clause contain.
- Terms are preformulated Contractual clauses that are one party of the other before concluding a contract presents. However, they are not automatically included in the contract and can not be imposed on the contractor! They only apply if they were contractually agreed. The contracting party or principal must therefore, agree to the terms and conditions used by its supplier. The consent can also conclusively, for example, by the fact that the client the terms and conditions (the Example attached to the offer were) does not contradict.
- From an agreement to the terms and conditions the client can only be assumed if this at all has known that its supplier uses terms and conditions. In general, it is enough if the contractor the client on the terms and conditions - in writing or orally - draws attention. The note must be clear, however; fine print and barely legible indications on the back of a bid are not enough out. With a contract offer in the Internet can with a Button or a Link to the terms and conditions.
- The mere reference to General Business conditions are not enough. The client must conclude the contract have demonstrably had the opportunity to inspect the terms and conditions! Whether he then actually taking insight or not is irrelevant. At a Offer on the Internet, the contracting party should also have the opportunity to Print out or save terms and conditions.
- Will only after the contract on the Terms and conditions referenced (for example, on a delivery note or an invoice), so it is late: The general terms and conditions are then not part of the contract.
- If both contract partners AGBs there are none that contradict each other on some points Will agree, so the conflicting terms and conditions Become part of the contract. Do the conflicting terms and conditions affect important points of the contract, in individual cases even the entire contract can not be concluded come. It is therefore highly recommended that the contracting parties have a Early agreement on the contradictory provisions of their bring about the respective terms and conditions.
- A complete disclaimer, a Exclusion of warranty in the event of defective provision of services or similar unilateral clauses discriminate against the other contracting party coarse and are therefore inadmissible i. S. of § 879 Abs. 3 ABGB. Exist doubt on the legal safety of present business conditions, it is advisable to seek professional legal advice.
- In a public tender Only the client gives the terms and conditions. Should in the course of a public tender offer an entrepreneur with terms and conditions other than those required by the client, offers the entrepreneur not tendering, what usually a irreversible defect and leads to the departure of the entrepreneur.