General Terms and Conditions.
A. Validity, conclusion of contract
- NDA GmbH, hereinafter referred to as “Agency”, provides its communications consulting 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 no express reference is made to them. The terms and conditions are applicable to legal relationships with entrepreneurs, including freelance persons or persons with their own marketing potential (e.g. athletes, celebrities, artists or other persons with relevant external impact).
- In principle, the agency does not provide services to consumers or persons without an entrepreneurial character. Should a consumer approach the agency in the course of a service requirement, he has to bring this to the attention without a doubt.
- The version valid at the time the contract is concluded is decisive. Deviations from these and other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.
- The general terms and conditions are brought to the knowledge of each customer prior to any business relationship in the course of the submission of an offer. The agency notifies the customer electronically of any changes or completely new versions via email. Changes to the terms and conditions for existing customers are deemed to have been agreed if the customer does not object to the changed points in the terms and conditions in writing within 14 days. Changes to the terms and conditions completely replace the previously valid version of the terms and conditions and all associated claims after the customer has taken notice.
- Any terms and conditions of the customer will not be accepted, even if they are known, unless otherwise expressly agreed in writing in individual cases.
- If the customer takes an action when the terms and conditions are promulgated, which suggests acceptance of the offer or continuation of the existing order, this is considered to be consent to the terms and conditions. In any case, the General Terms and Conditions become the subject of the purchase contract through the transmission of the order confirmation , provided that individual content has not been contradicted by then or within the period of the order confirmation.
- Should individual provisions of these terms and conditions be ineffective or contradicted, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision is to be replaced by an effective one that comes closest to its meaning and purpose.
- The agency’s offers are always subject to change and non-binding until the agency accepts the order by sending the confirmation of the offer.
- Insofar as designations relating to natural persons are only given in male form in this contract or in other documents of the agency, these refer to women and men in the same way. When applying the name to certain natural persons, the gender-specific form must be used.
- The agency declares that it only regards itself as responsible within the scope of its registered trade at the time of business conduct and the customer expressly acknowledges this.
- The agency declares that at no time will it play the role of
- IT consultant
- Data protection officer
- Legal / lawyer
- tax consultant
- Funding advisor
- Business consultant
- IT consultant
- Data protection officer
- Legal / lawyer
- tax consultant
- Funding advisor
- Business consultant
assumes or intends to appear and / or be perceived as such a similar service provider. In this regard, the agency also distances itself from any professional responsibility in this regard. The customer recognizes this 100% and will not claim the agency in connection with the above-mentioned areas or prosecute them on the basis of previous behavior.
B. Third Party Providers and Accounts
- The providers are therefore not obliged to forward content and information to the users. There is therefore a risk, which cannot be calculated by the agency, that advertisements and appearances will be removed for no reason.
- In the event of a complaint from another user, the providers give the option of counter-notification, but in this case, too, the content is removed immediately. In this case, it may take some time to regain the original, lawful state.
- The support of an objection against a measure taken against the customer by the provider is not included in the support provided by the agency. In this case, the Agency strongly recommends consulting a qualified legal advisor.
- In special cases it can also happen that the customer’s campaigns are managed by container accounts (e.g. Facebook Business Manager or Google Ads management account) or other third-party tools (PromoRepublic, Hootsuite, Schedugram, etc.) are used. The customer agrees to let the agency manage their own campaigns using such tools.
- The way in which the agency carries out the optimization and support is entirely up to the agency. Unless otherwise stated in a contract, the associated accounts are owned by the agency from the start.
- If no contract with a defined term has been agreed between the customer and the agency, the customer can also be supported by an agency account. In this case, the customer has to ensure the timely activation of the campaigns by paying the advertising budget on account.
- The agency acts as the arranger of this account, the grants the customer insight and rights to the extent which is necessary for the fulfillment (for example to set up payment methods; stopping campaigns, etc.).
- The customer is responsible for ensuring that the content in the accounts, as well as information about products and services, is correct and truthful at all times and that the rights of third parties or the requirements of the provider are not violated.
- The agency holds itself harmless against the customer, with regard to the legal claims on the part of the provider or third parties, which are in connection with the care of the customer and his media appearance on the platforms of the provider.
- Depending on the agreement, the customer pays the agency for proper support, constant further development or ongoing optimization of the campaigns, which can be controlled via so-called container accounts or directly in the account management of the respective provider.
- The rights to the accounts created by the agency are generally not transferred to the customer, unless this has been agreed in writing with the agency.
- At the end of the term, the customer can receive an export of the campaigns and the associated settings. This enables the campaign to be continued quickly. If this is not possible be , the Agency may also, alternatively, the content and settings in a new account manually transferred. For the manual transfer, the agency will charge a one-time fee in the amount of the previous monthly support. However, the transfer of the existing account is not intended for the purpose of performance documentation and the associated possibility of providing evidence of the performance provided.
- Should the customer nevertheless insist on handing over the managed account, he automatically waives any warranty or repair with regard to defects and holds the agency harmless against any claims – a separate written declaration on the part of the customer is NOT required, according to which the waiver Claims of any kind go hand in hand with the time of handover of the account or the activation of necessary rights of the customer.
- Unless a written elaboration and its transmission to the customer’s attention was expressly agreed within the service description of the respective offer item, all of the points listed serve to prepare the agency for the service to be provided in the context of the offer.
- The agency reserves the right to reject obviously adverse campaigns or campaign content that could lead to an economic or other disadvantage for the agency.
- Should such a circumstance be caused by deception, the agency reserves the right to end the campaign before the end of the period and to withhold the fee provided.
- When the campaign is ended, be it by the customer or the agency, all of the content associated with the campaigns remains in the possession of the agency. This applies, among other things, to the account structure itself, research that enables the agency to carry out it in the first place (ie keywords, market, competition), as well as other image, video or text content.
- The customer acknowledges that the agency uses the content of the campaigns, for example data or content (text, images, etc.) for statistical, scientific or commercial purposes, and may also pass them on to third parties for these or similar purposes, provided this is anonymous , happens in an aggregated manner and no personal data is affected by it, or no indirect reference to such data is possible. In case of doubt, prior to such data processing, the agreement with the customer must be established – in any case, however, the customer must be informed about the purpose of the data processing by the agency. At no time does this give rise to a right to remuneration, commission, revenue share or the like vis-à-vis the agency.
- If possible, after the collaboration with the customer has ended, the agency will leave the processed account intact and put it in a passive state so that the customer can initiate a continuation of the campaign with the agency at any time.
- If the customer wants to claim this account after the account has been closed, the agency is not obliged to leave the intangible assets of the campaigns in terms of structure, texts, images, settings, reports or other configured parameters in the account. In any case, the agency is obliged to hand over the clean account within 30 working days.
- All data that was collected or processed through the use of third-party platforms (ie Facebook, Google, LinkedIn, etc., etc.) in the course of the agency’s support may be recorded by the agency, but only in anonymized form, for statistical purposes , stored, documented and evaluated, and used without restriction in all possible applications, even if the use is a direct or indirect added value for a monetary purpose. The customer is at no time entitled to compensation, commission or other monetary appreciation with the data collected and used in this context.
C. Concept and idea protection
- If the potential customer has already invited the agency in advance to create a concept and the agency complies with this invitation before the main contract is concluded, the following rules apply:
- The potential customer acknowledges that the agency is already providing cost-intensive preliminary work with the concept development, although it has not yet assumed any performance obligations itself.
- The concept is subject to the protection of copyright law in its linguistic and graphic parts. The potential customer is not permitted to use and edit these parts without the consent of the agency due to copyright law.
- The concept also contains advertising-relevant ideas that do not reach the height of the work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as a spark of everything that comes up later and thus as the origin of the marketing strategy. That is why those elements of the concept are protected that are peculiar and give the marketing strategy its characteristic character. In particular, advertising keywords, brand names, advertising texts, graphics and illustrations, animations, storyboards, advertising materials, etc. are viewed as ideas within the meaning of this agreement.
- The potential customer undertakes to refrain from using the creative advertising ideas presented by the agency within the framework of the concept, outside of the corrective of a main contract to be concluded later, economically or having them used or used or allowed to be used.
- If the potential customer is of the opinion that the agency presented ideas to him that he had already come up with before the presentation, he must inform the agency within 14 days of the day of the presentation by email, stating all evidence, which allow a time allocation to be announced.
- In the opposite case, the contracting parties assume that the agency has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the agency was meritorious.
- The potential customer can exempt himself from his obligations under this point by paying appropriate compensation plus 20% sales tax. The exemption does not apply until the agency has received full payment of the compensation.
D. Scope of services, order processing and the customer’s obligation to cooperate
- The scope of the services to be provided results from the service description in the agency contract or any order confirmation by the agency, as well as any protocol, the range of services and the associated module breakdown (“offer documents”). Subsequent changes to the service content require written confirmation by the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
- After the customer has received the offer from the agency, he has to sign it for acceptance in the area provided – this is to be seen as an immediate acceptance of the offer.
- Acceptance also applies if the customer undertakes an implied action, such as filling a project board, submitting documents or other actions related to the order, and does not contradict the order confirmation within the deadline.
- After the successful acceptance of the submitted offer documents, the agency can send an order confirmation in order to bring about a timely start of the processing, a liability of both parties and a corresponding bridging up to the signing of the contract. In principle, the customer has the opportunity within five working days to withdraw from the order by means of a written objection to the order confirmation if this does not correspond to the parameters discussed. After expiry of the deadline or implied action on the part of the customer in the course of order processing, the order is deemed to have been placed and will be invoiced.
- All agency services (in particular all preliminary drafts, storyboards, treatments, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by the customer within five working days of receipt by the customer. After this period has expired, without feedback from the customer, they are deemed to have been approved by the customer.
- The customer will make all information and documents available to the agency in a timely and complete manner that are necessary for the provision of the service. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order.
- The customer will provide the agency with all data, information and documents about marketing goals, markets and products that are necessary or useful for its work, if available, in a timely and complete manner. The agency undertakes to treat them as strictly confidential.
- If necessary, the customer will issue the approvals provided for in the contract in good time so that the work flow of the agency and its suppliers and thus the jointly fixed goals are not impaired; Permits that are not provided or that are provided late can result in additional costs.
- In any case, it is not permitted to offset the costs of the customer with regard to communication or other things against the agency’s services and can only be done in agreement with the agency after written notification (see complaint) .
- The customer bears the expense that arises from the fact that work has to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
- The customer is also obliged to check the documents (photos, logos, etc.) made available for the execution of the order for any copyrights, trademarks, trademarks or other rights of third parties (rights clearing) and guarantees that the documents are free of rights Are third parties and can therefore be used for the intended purpose.
- Should the customer as part of the job require the use of third party software / commission (Google Analytics, Facebook pixels Google Tag M a rodent, or the like) , the Agency will complete the installation must be carried out on behalf of the customer. This means that both d he proper use of the account s , as well as the related obligations solely be the responsibility of the customer.
- In particular application is also noted that the respon -responsibility in the creation of websites / web shops by agency or its sub-contractors , in the sense , as data protection, technical and organizational measures can be located at the customer. The customer has under its commitment s sole ensure that the respective website / web shop the legally required equivalent parameters. The most important elements can be checked under the following links:
- After fulfilling its warning obligation through these terms and conditions – at least in the internal relationship with the customer – the agency is not liable for a violation of such third party rights through accounts or websites / web shops or other software used by the customer .
- Also the agency is not liable in Bel lengths of data protection it technical and organizational measures within the meaning and for the purposes of processing personal data. The customer must ensure that all components of his website / platforms / accounts , as well as the software used, comply with the current legal requirements and are used in a compliant manner.
- If the agency or the customer is called upon by a third party due to such a suspected violation of the law , as described above , the customer shall indemnify and hold harmless the agency; He has to reimburse her for all disadvantages that she incurs as a result of third-party claims, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties. For this purpose, the customer provides the agency with all documents without being requested to do so.
E. External services / commissioning third parties / commissions
- The agency is entitled at its own discretion to perform the service itself, to use competent third parties as vicarious agents for the provision of contractual services and / or to substitute such services (“external service”). Third parties are also those providers of media, platforms and advertising networks who offer the customer a range and advertising presence. This includes both statutory and non-statutory organizations, associations, individuals or other companies from Germany and abroad. The customer is free to prohibit the substitution of a service by a specific third party vis-à-vis the agency, provided that the customer names an adequate substitute for this third party to be replaced.
- The commissioning of third parties in the context of an external service takes place either in their own name or in the name of the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
- The customer must take responsibility for obligations towards third parties that go beyond the term of the contract. This also applies expressly in the event that the agency contract is terminated for an important reason.
- Insofar as the agency commissions necessary or agreed third-party services on behalf of the customer, the respective contractors are not agents of the agency, but rather describe a direct business relationship.
- Insofar as commissions arise through the cooperation with third-party providers, these are not part of the relationship between the customer and the agency. Third parties who offer commissions in their ongoing business practices to purchasing agencies calculate this within the framework of common agency commissions.
- The agency is entirely entitled to commission earned by the agency in this way. In the event that the agency receives commissions in this way, the customer is not entitled to a discount or any other monetary share of these commissions.
- The agency can pass on commissions to a third party / customer if a potential new contact is successfully mediated . In principle, the customer has no right to a share in these commissions , even if there has been an indirect contact relationship.
- In case of doubt, the agency will only grant commission payments on recurring services, in the amount of 5% up to a maximum of 15%. This is largely dependent on the respective product / service. Deviations from this regulation are to be regulated in a separate partner contract .
- Services for which the agency uses third parties are generally excluded from commissions.
- Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointments must be made in writing or confirmed in writing by the agency.
- If the delivery / service of the agency is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be prevented with reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and the deadlines are extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
- If the agency is in default, the customer can only withdraw from the contract after giving the agency a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of evidence of intent or gross negligence.
- If the customer postpones dates or milestones of campaigns that extend or postpone the entire service period, the agency can add part of the original fee to the entire fee for the additional service period.
- If, due to the postponement, the positions booked and the material created become superfluous, the agency has no obligation to reimburse the customer for the resulting costs.
- If meeting appointments are agreed in the course of support, both the customer and the agency must keep these appointments.
- If these appointments are part of a contractually agreed support from which a fee claim results, the fee claim only arises when the customer and the agency have met this date. If the customer does not keep an agreed appointment and does not notify the agency, the appointment is deemed to have been taken. In any case, the documentation in the electronic communication is decisive for this.
G. Duration of the Agreement
- The relationship between the customer and the agency is generally not subject to a minimum contract term, which is why the customer can terminate the support at any time , unless otherwise agreed in writing .
- As soon as the purchase of services from third parties has been included in the cooperation between the customer and the agency, the customer undertakes to a minimum term of 3 months, during which at least the purchased service is consumed by the customer.
- In all other cases, the minimum contract period that is defined in the agency contract applies, but at least that which corresponds to half of the entire contract period. If this contract is concluded for an unlimited period, the minimum contract period is 12 months.
- Unless otherwise agreed, the minimum contract period begins on the first of the following month from the time the contract is signed.
H. Early termination / termination of the contract / change or termination / withdrawal / Storne
- After the offer has been accepted and the order confirmation has been sent, an effective purchase contract has arisen between the agency and the customer after the deadline has expired. Unless otherwise agreed in writing via the offer, the service described therein is to be provided by the agency without delay.
- Both parties, both the customer and the agency, are entitled to terminate the current contract on the 15th of each month after an agreed minimum contract period has expired, with a notice period of 14 days.
- The contract can be terminated by the customer and the agency on the 15th of the month if the respective economic situation no longer allows the contract to be continued.
- If no conversions = target projects defined by the agency (e.g. contact inquiries, calls, salespeople or the like), which are measured using third-party tools, are achieved, the customer has the option at any time, subject to a period of 14 days, to to terminate the current contract on the 15th of each month.
- In the event of termination on the part of the customer, the customer has no right to receive any documents and generated information without payment of the fee due up to this point in time to the agency. Likewise, if the termination occurs before the end of the minimum contract period, the customer must pay all fees associated with the contract for the agreed services for the duration of the contract in full to the agency without delay.
- If the customer unilaterally changes or interrupts work commissioned without the agency’s involvement – regardless of the ongoing other support provided by them – he has to reimburse the agency for the services provided up to that point in accordance with the fee agreement and to reimburse all costs incurred in the context of cancellation .
- Unless otherwise agreed in writing, the cancellation fee is at least 30% of the total order volume. If services have already been provided at the time of the cancellation, the customer must pay for the entire service provided in accordance with the agency’s hourly record.
- If the customer does not accept work that has already been completed, delays it or breaks it off without good reason, he must reimburse the agency for the entire order volume.
- If the termination is not justified by a grossly negligent or willful breach of duty by the agency, the customer must also reimburse the agency for the fee agreed for this order on a pro-rata basis, whereby the crediting fee of § 1168 AGBG is excluded. Furthermore, the agency is to be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of the agency.
- If the agency terminates the current contract, it loses the right to outstanding payments and fees that exceed the workload of the services provided.
- The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if,
a) the performance of the service becomes 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 to violate essential obligations from this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days .
c) there are legitimate concerns about the creditworthiness of the customer and the customer neither makes advance payments at the request of the agency nor provides a suitable security prior to the agency’s performance.
- The customer is entitled to dissolve the contract for important reasons without setting a grace period. An important reason exists in particular if the agency continues to violate essential provisions of the contracts with the customer despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
- In the event of immediate termination by the customer, the claim for outstanding documents or other content, as well as reimbursement of fees paid in advance by the customer, is waived. Services provided by the agency up to this point must be paid to the agency by the customer without delay.
- Services made through payments made in the form of advance payments or partial payments and paid down by the customer are not subject to reimbursement if the customer or agency terminates the contract, regardless of the services previously provided.
- In the event of immediate termination by the agency, the agency is entitled to all outstanding payments and fees, including those that exceed the workload of the services provided, for the duration of the contract term.
- Unless a different fee has been agreed for services as a result of the offer, an hourly fee of EUR 150.00 net is deemed to have been agreed.
- If the agency does not expressly grant the customer any express written free of charge or a specific activity by the agency has been agreed upon by both parties, there is a fundamental suspicion of remuneration with regard to the work performed by the agency towards the customer, which means that their work is based on hourly rates of EUR 60 each. 00 is to be remunerated net for every half hour or part thereof. A service provided in this way can, for example, result from a gracious advance service by the agency or from ongoing support for the accounts.
- In any case, the agency is entitled to invoice such a service without the prior consent of the customer, since the consumption of the service is agreed as consent to the provision of the service on the part of the customer.
- The declaration of the intention to offset services according to points 1, 2 and 3 vis-à-vis the customer must be made within a period of 12 months for the purpose of validity.
- The agency’s services in accordance with invoicing are also deemed to have been rendered if only part of the position description contained therein has been rendered to the customer. The customer acknowledges that communication and support activities are always part of the respective position / service, without these having to be listed separately in the position descriptions of the services. In any case, these justify a claim to remuneration in the amount of 25% of the respective positions.
- Different models can be used as fee types for the respective products and services of the agency: Services can be a one-off payment, monthly payment with a certain term, monthly payment with an indefinite term, a proportionate agency commission in the media budget used or as a share in the return on investment / revenue achieved Sharing are compensated.
- Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been performed. The agency is entitled to request advances or payment on account to cover its expenses. From an order volume of EUR 1,000.00 or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to call up payments on account. In addition, the agency is entitled to call up payments on account at any time if it deems this to be useful. The customer acknowledges that the usual amount of the payment on account is at least 50% of the total order volume.
- The entitlement to monthly services, contrary to the billing of one-off services, always takes place in the middle of the month, at which point the invoicing takes place. Accordingly, if the customer reaches the middle of the month without giving notice, the customer is entitled to 100% of the fee. In all other cases, the fee will be billed on a pro-rata basis in accordance with the work performed so far.
- Should a project exceed a specific date for completion by a longer period of time through no fault of the agency and should not require any further structural measures on the part of the agency, the agency is entitled to invoice the customer for up to 90% of the order volume, the completion of a new one time assessment and, if necessary, give priority to other projects.
- All costs associated with ongoing support by the agency are adjusted to the relevant index on the relevant date of the inflationary impact. For this purpose, the agency is based on the value of the harmonized consumer price index (HICP), which, according to the OeNB as of July 9, 2019, has a constant value of 1.7 percentage points ( https://www.oenb.at/Presse/20190709. html ). The adjustment to inflation takes place at the beginning of each new financial year of the agency.
- The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee in the amount customary in the market for the services provided and the transfer of the rights of use under trademark law.
- All agency services that are not expressly covered by the agreed fee will be remunerated separately after prior agreement with the customer. All cash expenses incurred by the agency are to be reimbursed by the customer upon presentation of receipts and their approval. The agency is free to refuse tasks that involve cash outlays.
- The agency’s cost estimates are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the agency 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 notification and at the same time announces cheaper alternatives. If the costs are exceeded by up to 15%, separate notification is not required. This overrun of the cost estimate is deemed to have been approved by the customer from the outset.
- Ref.H 6): If the termination is not justified by a grossly negligent or willful breach of duty by the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the crediting remuneration of §1168 AGBG is excluded. Furthermore, the agency is to be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of the agency.
- By paying the fee, the customer does not acquire any rights of use for work that has already been performed; Instead, concepts, drafts and other documents that have not been carried out are to be returned to the agency immediately.
- In the case of some projects, in particular websites, web shops, applications and other projects, in which the customer contributes significantly to the completion of the product through content, the customer acknowledges that a fixed point in time has been agreed and the total fee is due. The point in time is subject to a reasonable period of time in which the customer has the opportunity to deliver the respective content component. In any case, the agency must complete the project without delay as soon as the entire fee has been paid.
- In order to reduce the administrative effort, the agency is free to invoice monthly services, provided that these have been consumed by the customer for at least three consecutive months, within one invoice for the entire quarter.
- Services that are billed in advance are considered credit and will be reimbursed 100% if the services are not consumed by the customer.
J. Payment / retention of title / collection o / dunning process / legal conduct
- The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment conditions are agreed in writing in individual cases and appear on the invoice . This also applies to the charging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all ancillary liabilities.
- Falsely or inadvertently issued invoices are to be reported to the agency in writing by the customer without delay. The terms of the warranty regarding defects and compensation according to point 14 apply.
- In order to ensure proper payment processing, the agency is free to call in a trustee or to be represented by a suitable entity. The agency ensures that it provides the mentioned entity with all necessary rights and powers.
- In the event of default in payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the reminder and collection costs incurred, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the usual market amount, currently at least EUR 50.00 net per reminder, as well as those of a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
- The customer acknowledges that as soon as an invoice becomes due, the dunning process occurs fully automatically in the following process , as long as the invoice is not paid ,
- 1st reminder 7 days after the invoice is due
- 2nd reminder from 7 days after the 1st reminder
- 3rd reminder from 7 days after the 2nd reminder
- The customer acknowledges that the agency has an active, contractual relationship with a debt collection service provider, which is activated after a third reminder when a payment default occurs .
- The Customer acknowledges that it is up to the agency directly to commission in intervention of legal representation. Any resulting costs are to be borne in full by the customer.
- In the event of default in payment by the customer, the agency can immediately make all services and partial services due within the framework of other contracts concluded with the customer.
- Furthermore, the agency is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay remuneration remains unaffected.
- If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
- The customer is not entitled to set off his own claims against claims of the agency, unless the customer’s claim has been recognized by the agency in writing or has been determined by a court.
- The agency advises every customer to use the online billing options available through the agency’s shop. Hourly rate, which in the online shop are present, always ask the respective low hourly rate is. If payment of the invoice date, the customer based on de is s desired payment target eigeteilt in a price group.
- New customers start in the highest price group and are divided up after 3 months on the basis of their desired payment term. The agreed payment term influences the agency’s cash flow as well as the automatic dunning process. Accordingly, the definition and the division of the desired payment term apply as the basis of the business conduct between the customer and the agency and must be adhered to accordingly.
- If a customer does not meet the agreed payment term, the agency is entitled to change the customer’s price group. A change in the price group automatically changes the underlying hourly rates for the respective service consumed and is applicable from the following month.
- 1st reminder 7 days after the invoice is due
- 2nd reminder from 7 days after the 1st reminder
- 3rd reminder from 7 days after the 2nd reminder
K. Image and video / print media
- Images made available to the agency by the customer can be changed by the agency for use on digital platforms or websites. This is necessary to ensure compatibility or to meet the requirements of the platforms, social media and other providers. The agency points out that this can lead to a deterioration in quality in terms of resolution / sharpness.
- The agency points out that screen colors (RBG) can be displayed differently from printing colors (CMYK) on different media. Returns or exchanges are excluded, as the printing depends on the respective printing company. For a surcharge at the printing company, however, there is the option of color binding.
L. Copyright, usage , modification and exploitation rights
- All services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides) and also individual parts thereof, as well as the individual workpieces and draft originals, remain the property of the agency and can be of reclaimed from the agency at any time – especially when the contractual relationship is terminated.
- By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the agency’s services in Austria, unless the order itself means that use outside of Austria is clear and implied.
- Unless otherwise agreed, the agency only grants a right to use the fully paid services. There is no right to change or other different purposes.
- The acquisition of usage and exploitation rights to the agency’s services always requires full payment of the fees charged by the agency. If the customer uses the agency’s services before this point in time, this use is based on a loan relationship that can be revoked at any time.
- Changes or processing of services of the agency, in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and – insofar as the services are protected by copyright – the author and assumes that all fees, which are related to the creation of the content have been compensated.
- The agency’s consent is required for the use of services provided by the agency that go beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright or not. For this, the agency and the author are entitled to a separate appropriate remuneration, which is 2% per month, based on the creation costs of the content and materials.
- If, after the end of the collaboration, the customer intends to continue using materials that were provided by the agency free of charge for the purpose of campaigning, the customer has a monthly license fee of 2% for all materials (banners, etc.), based on the entire theoretical purchase price to be paid to the agency.
- For the use of the agency’s services or advertising material for which the agency has developed conceptual or creative templates, the agency’s consent is also required after the agency contract has expired, regardless of whether this service is protected by copyright or not.
- The customer is liable to the agency for any unlawful use in double the amount of the fee appropriate for this use.
- The agency points out that the customer must independently and legally clarify copyright issues with regard to any protected graphics and brands (e.g. logos from third-party companies) . The agency cannot grant any permission for the use or modification / use of the modification of such graphics.
M. Identification / Testimonial
- The agency is entitled to refer to the agency and, if necessary, to the author on all advertising material and in all advertising measures, without the customer being entitled to a claim for payment.
- The agency is entitled, subject to the customer’s written revocation at any time, to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its website with the name and company logo (reference note).
- The agency is interested in including its customers and partners in a reference customer program in order to show a common presence in the market and thus promote both entities. With regard to inclusion in the reference program, the customer agrees to be named by the agency as a reference customer on the customer list and on its own website. This includes naming the customer including the logo & project solution, displaying the contact person as a testimonial with prior consent to the use of the images as personal data and a brief description of the content of the respective customer solution.
- The agency is permitted to use its work results or excerpts from them for the purpose of self-promotion – even after the end of the contract period – free of charge.
- All reference notices in the sense of the labeling apply exclusively to information that does not contain any personal data.
- Insofar as personal data are affected by a reference, a separate contract for the use of this must be concluded.
- In the case of web solutions (e.g. websites and the like), the customer allows the agency to place a “DoFollow link” in the footer or in the imprint of the page. The link can be carried out on text or logo.
N. Business conduct web projects / special regulations
- In the case of projects that have to do with the creation and management of websites and / or online shops of any kind, special regulations apply with regard to the process and service documentation. The project management team creates a GANT chart for the implementation of such projects, which shows the individual phases of the project and thus defines the delivery and cooperation of both parties with regard to certain time frames.
- In contrast to other projects, the following payment terms are agreed on the basis of the GANT planning according to the progress of the project:
- 50% deposit at the start of the project
- 25% partial payment upon acceptance of the design
- 25% final payment upon successful acceptance of the project
- 50% deposit at the start of the project
- 25% partial payment upon acceptance of the design
- 25% final payment upon successful acceptance of the project
Please note that the website will only be deployed after it has been approved.
- The customer is obliged to deliver documents and content for the website / web shop in a timely manner as part of the phase formation. If content is not delivered, this leads to a project delay, which results in a new schedule by the project management .
- The customer is not entitled to the previously agreed delivery date of the project being adhered to in the event of a delay.
- If the agency incurs additional expenses due to the delay, the agency is entitled to invoice the customer for this.
- The customer is responsible for the correctness and correct implementation of his data protection guidelines and the content of the imprint. The agency will issue only recommendations at this point and explicitly points out that any formulation and testing of a legal representative is up to.
- The agency further points out that any use of logos, icons, graphics, animations, videos and soundtracks with regard to legal parameters, in particular with regard to licenses for use for commercial purposes, must be checked by the customer . The agency will not undertake any control activities to check whether material that has not been procured by the agency is admissible.
- The agency assumes no guarantee or liability if damage to the website or web shop occurs through the use of third parties / third-party providers. These include, for example, hosting providers or other software service providers.
- The agency guarantees perfect functionality of the website in the context of customer projects. Above all, this includes
Design errors and / or spelling mistakes do not count towards impairment of the functionality of a website.
O. Online Shop / Revocation / Delivery / Shipping / Terms of Payment
- The offers in our online shop are always subject to change and apply while stocks last. We reserve the right to make minor deviations and changes. The product images shown mainly correspond to the service offered. Subject to color deviations, typesetting and printing errors .
- By placing the products in the online shop, we are submitting a binding offer to conclude a contract for these items. You can initially place our products in the shopping cart (shopping cart) without obligation and correct your entries at any time before submitting your binding order by using the correction aids provided and explained in the order process.
- By clicking the order button (“Order now for a fee”) you are placing a binding order for the goods in the shopping cart (shopping cart). The confirmation of the receipt of the order takes place together with the acceptance of the order immediately after sending by an automated e-mail. With this e-mail confirmation, the purchase contract is concluded, to which the invoice is attached. If the e-mail is demonstrably unavailable at the time of the order or if no e-mail was given when the order was placed, the purchase contract is concluded when the package is dispatched.
A binding contract can also be concluded beforehand as follows:
- If you have chosen the PayPal payment method , the contract is concluded at the time you confirm the payment order to PayPal.
- If you have chosen the Klarna / Sofortüberweisung payment method , the contract is concluded at the time the payment order is confirmed to KLARNA GmbH (successor company of SOFORT AG).
- If you have chosen the SEPA direct debit payment method , the contract is concluded when the “Order successful” confirmation page appears.
- If you have chosen the Mastercard / Visa payment method , the contract is concluded at the time the payment order is confirmed to Mollie .
- In addition to the stated product prices, shipping costs may also apply. You can find more detailed provisions on any shipping costs incurred in the offers or under the point “Delivery, Payment”.
- Entrepreneurs are not granted a voluntary right of withdrawal.
- We reserve title to the goods until all claims from an ongoing business relationship have been settled in full .
- The risk of accidental loss and accidental deterioration is transferred to you as soon as we have delivered the item to the freight forwarder, the carrier or the person or institution otherwise assigned to carry out the shipment. The obligation to examine and give notice of defects as regulated in Section 377 of the Austrian Commercial Code (UGB) applies to companies. If you omit the notification regulated there, the goods are considered approved, unless there is a defect that was not recognizable during the examination. This does not apply if we have fraudulently concealed a defect.
- The customer must report any defects immediately, in any case within 14 days after delivery / service by the agency, hidden defects within fourteen days after detection of the same, in writing with a description of the defect, in order to be able to claim a free improvement; Otherwise the service is considered approved. In this case, the assertion of warranty and claims for damages, as well as the right to avoid errors due to defects, are subject to the deadline specified below and must be proven by the customer.
- In the event of a justified and timely notification 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 period of time, whereby the customer enables the agency to take all measures necessary for the investigation and remedial action.
- The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of improvement, it is the customer’s responsibility to transfer the defective (physical) item at his own expense.
- It is also the responsibility of the customer to check the service for its legal, in particular competition, trademark, copyright and administrative permissibility. The agency is only obliged to carry out a rough check of the legal admissibility. In the event of slight negligence or after fulfilling a possible warning obligation to the customer, the agency is not liable for the legal admissibility of content if this has been specified or approved by the customer.
- The warranty period is 6 months from delivery / service. The right to recourse against the agency in accordance with Section 933b (1) ABGB expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of §924 ABGB is excluded.
Q. Liability and Product Liability
- In cases of slight negligence, liability of the agency and that of its employees, contractors or other vicarious agents (“people”) for property damage or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, lost profit or consequential damage, damage due to delay , Impossibility, positive breach of contract, negligence when concluding the contract due to defective or incomplete performance. The injured party has to prove the existence of gross negligence. Insofar as the agency’s liability is excluded or limited, this also applies to the personal liability of its “people”.
- Any liability on the part of the agency for claims made against the customer on the basis of the services provided by the agency (e.g. advertising measures) is expressly excluded. The customer must ensure at all times that the content associated with him is ethically and legally compliant and does not violate the requirements of third parties.
- In particular, the agency is not liable for legal costs, the customer’s own legal costs or the costs of the publication of judgments, as well as for any claims for damages or other claims by third parties. The customer has to indemnify and hold harmless the agency in this regard.
- Claims for damages by the customer expire 6 months after knowledge of the damage, but in any case after 2 years from the agency’s act of infringement. Claims for damages are limited in amount to the net order value.
- The agency will inform the customer in good time of any recognizable legal risks associated with the content or the design of planned advertising measures. If the agency deems a legal (e.g. competition law) examination by a particularly competent person to be necessary for the implementation of the measures, it must inform the customer of this. If the agency has pointed out concerns and the customer nevertheless insists on the implementation of the advertising measure, the agency is not liable for any disadvantages and risks resulting therefrom. The customer holds the agency harmless from and against any claims by third parties.
- Regardless of this, the agency is not liable for the factual information contained in advertising measures about the customer’s products or the copyright, sample, trademark or trademark protection of the ideas, suggestions, concepts, drafts etc. delivered within the framework of this contract, unless these Protectability was expressly part of the contract.
R. Data protection, confidentiality / duty of confidentiality
- The customer gives his consent that data transmitted in the course of order initiation will be stored and processed on the basis of the legal basis of a pre-contractual status.
- The customer acknowledges that he is solely responsible for ensuring that marketing measures that are carried out by the agency and that have an influence on the customer’s data processing processes are vis-à-vis third parties (e.g. visitors to the customer’s websites, etc.) in a legally compliant manner must be brought to the notice in a timely manner.
- The agency is not obliged to check the customer’s data protection concept in any way or to convince itself of its validity . The agency is also not obliged to make adjustments to the customer’s data processing processes.
- This applies above all to the integration of various third-party tools that trigger cookies on the customer’s website and are stored by their visitors. The agency refers to the implementation of the directive and the ECJ ruling with regard to cookies on websites.
- If this requires consent from the third-party provider in relation to the customer, the customer must ensure that the agency is also legally compliant. This concerns, among other things, the implementation of newsletter campaigns, the integration of third-party software (remarketing, tracking pixels and the like), as well as other processes in which the customer provides the agency with data directly or indirectly that affect their customers (this also applies to anonymized data on their websites or mobile applications).
- The agency holds itself harmless to the customer against claims by third parties in relation to compliance with the provisions of the Data Protection Act (DSG) and the General Data Protection Regulation (GDPR) in the respectively applicable versions and taking into account the respective special national regulations. The customer acknowledges that he is solely responsible for ensuring that these provisions are adhered to towards his customers (website visitors or the like).
- The agency undertakes to keep the data received properly and taking into account the necessary technical and organizational measures for the duration of the contractual relationship.
- The agency reserves the right to archive received data for documentation purposes. If this also concerns personal data, the statutory provisions on deletion periods and other handling apply.
- The customer can find details on the use and processing of personal data at https://www.nda-agency.com/privacy/.
- The agency undertakes to maintain silence about all operational issues and processes of the customer that came to its attention in the context of the fulfillment of the order and not to pass on confidential information to third parties.
- The agency will treat as strictly confidential all information and documents that it becomes aware of in the course of working with the customer and that are not intended to be passed on to third parties. It will oblige employees and third parties who receive such information or documents to carry out work under this contract to the same confidentiality. The confidentiality obligation applies beyond the duration of this contract.
- The customer undertakes not to pass on conceptual documents created to third parties without the consent of the agency.
- The customer undertakes not to pass on to third parties any information that he receives or has already received as part of an offer and to keep it confidential. Passing on information without the consent of the agency will result in the loss of the benefits granted that relate to this offer.
- Company-internal information that the customer obtains as part of the cooperation with the agency may not be passed on to third parties even after the service has been provided. Should this nevertheless be the case, the customer acknowledges that his actions may result in claims for damages.
S. Applicable Law
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 to the exclusion of its reference norms and to the exclusion of the UN sales law.