General Terms and Conditions
of Sery* Brand Communications GmbH
Terms and Conditions
of Sery* Brand Communications GmbH
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7. Early Termination
7.1
The agency is entitled to terminate the contract for important reasons with immediate effect. 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 the setting of a grace period of 14 days;
b)
the customer repeatedly, despite written warning with a grace period of 14 days, violates fundamental obligations under this contract, such as payment of a due amount or cooperation obligations;
c)
there are legitimate concerns regarding the customer's creditworthiness, and upon the agency's request, the customer neither makes advance payments nor provides a suitable security before the agency's performance.
7.2
The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists, in particular, if the agency continuously violates fundamental provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
8. Honorarium
8.1
Unless otherwise agreed, the agency's entitlement to fees arises for each individual service as soon as it has been provided. The agency is entitled to demand advance payments to cover its expenses. For an order volume with an (annual) budget of € 10,000 or for those that extend over a longer period, the agency is entitled to create interim invoices or advance invoices or to call for down payments.
8.2
The fee is understood as a net fee plus the statutory value-added tax. In the absence of an individual agreement, the agency is entitled to a fee for the services rendered and the transfer of copyright and trademark usage rights in the market-related amount.
8.3
All services of the agency that are not expressly covered by the agreed fee will be compensated separately. All out-of-pocket expenses incurred by the agency are to be reimbursed by the client.
8.4
Cost estimates provided by the agency are non-binding. If it becomes apparent that the actual costs will exceed those estimated by the agency in writing by more than 15%, the agency will inform the client of the higher costs. The cost overruns are considered approved by the client if the client does not object in writing within three working days of this notice and simultaneously provide more cost-effective alternatives. If the cost overruns are up to 15%, a separate notification is not required. This cost estimate overrun is deemed to be approved by the client from the outset.
8.5
If the client unilaterally changes or cancels commissioned work without involving the agency – without prejudice to the ongoing other support by the agency – he must compensate the agency for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the cancellation is due to gross negligence or intentional breach of duty by the agency, the client must furthermore reimburse the agency the entire fee (commission) agreed for this order, whereby the compensation for set-off according to § 1168 AGBG is excluded. Furthermore, the agency is to be kept harmless regarding any claims made by third parties, in particular by contractors of the agency. By paying the fee, the client does not acquire any usage rights to the already rendered works; unexecuted concepts, drafts, and other documents must rather be returned to the agency immediately.
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 have been agreed upon in writing in individual cases. This also applies to the re-invoicing of all cash expenses and other expenditures. The goods delivered by the agency remain the property of the agency until full payment of the remuneration including all ancillary obligations has been made.
9.2
In the event of the customer being in default of payment, the statutory default interest applies at the rate applicable to commercial transactions. Furthermore, the customer undertakes, in the event of default, to reimburse the agency for any reminder and collection expenses incurred, provided they are necessary for appropriate legal proceedings. This includes the costs of two reminder letters at market rates of at least €20.00 each as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
9.3
In the event of the customer being in default of payment, the agency may demand the immediate payment of all services and partial services rendered within the scope of the contracts concluded with the customer.
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.
9.5
If payment in installments has been agreed upon, the agency reserves the right, in the event of the late payment of partial amounts or ancillary claims, to demand immediate payment of the entire outstanding debt (loss of deadline).
9.6
The customer is not entitled to offset its own claims against those of the agency, unless the customer's claim has been acknowledged in writing by the agency or legally established.
10. Ownership and Copyright
10.1
All services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, drafts, scribbles, layouts, proofs, concepts, negatives, slides), as well as individual parts thereof, remain the property of the agency, along with the individual works and original drafts, and can be requested back by the agency at any time - especially upon termination of the contractual relationship. The client acquires the right to use the services for the agreed purpose upon payment of the fee. In the absence of a different agreement, the client may only use the agency's services in Austria. The acquisition of usage and exploitation rights to the agency's services always requires full payment of the fees invoiced by the agency for this purpose. If the client uses the agency's services before this time, such use is based on a loan relationship that can be revoked at any time.
10.2
Changes or modifications of services provided by the agency, such as their further development by the client or by third parties working for the client, are only permissible with the express consent of the agency and - to the extent that the services are protected by copyright - of the author.
10.3
For the use of services of the agency that goes beyond the originally agreed purpose and scope of use, the agency's consent 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.
10.4
For the use of services provided by the agency or advertising materials for which the agency has developed conceptual or design templates, the agency's consent is also necessary after the expiration of the agency contract, regardless of whether this service is protected by copyright or not.
10.5
For uses according to paragraph 4, the agency is entitled to the full agency fee agreed upon in the expired contract for the first year after the contract ends. In the second or third year after the expiration of the contract, only half or a quarter of the fee agreed in the contract shall be payable. From the fourth year after contract termination, no agency fee is to be paid.
10.6
The client is liable to the agency for any unlawful use in double the amount of the appropriate fee for this use.
11. Labeling
11.1
The agency is entitled to refer to the agency and, if applicable, to the copyright holder in all advertising materials and in all advertising measures, without the customer having any entitlement to payment for this.
11.2
Subject to the customer's right to revoke this in writing at any time, the agency is entitled to refer to the existing or former business relationship with the customer on its own advertising media and particularly on its website with name and company logo (reference notice).
12. Warranty
12.1
The customer must promptly report any defects, in any case within eight days after delivery / performance by the agency, hidden defects within eight days after becoming aware of them, in writing describing the defect; otherwise, the performance is considered approved. In this case, the assertion of warranty and damage claims as well as the right to contest due to defects is excluded.
12.2
In the case of legitimate and timely defect complaints, the customer has the right to improvement or replacement of the delivery/performance by the agency. The agency will rectify the defects within a reasonable period of time, whereby the customer enables the agency to take all necessary measures for investigation and rectification of defects. The agency is entitled to refuse to improve the performance if this is impossible or involves an unreasonable amount of effort for the agency. In this case, the customer is entitled to the legal rights of conversion or reduction. In the case of improvement, it is the obligation of the client to carry out the transmission of the defective (physical) item at their own expense.
12.3
It is also the responsibility of the client to conduct the review of the performance regarding its legal, particularly competition, trademark, copyright, and administrative law admissibility. The agency is only obliged to conduct a rough check of the legal admissibility. The agency is not liable in the event of slight negligence or after fulfilling any possible duty to warn towards the customer for the legal admissibility of content, if this has been specified or approved by the customer.
12.4
The warranty period is six months from delivery/performance. The right to recourse against the agency according to § 933b para. 1 ABGB expires one year after delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumptive rule of § 924 ABGB is excluded.
13. Liability and Product Liability
13.1
In cases of minor negligence, the agency and its employees, contractors or other fulfilling agents ("people") are excluded from liability for property or asset damage to the client, regardless of whether it is direct or indirect damage, loss of profit or consequential damages, damages due to delay, impossibility, positive breach of claim, negligence when concluding the contract, or due to defective or incomplete performance. The burden of proof for gross negligence lies with the injured party. To the extent that the agency's liability is excluded or limited, this also applies to the personal liability of its "people".
13.2
Any liability of the agency for claims made against the client based on the services provided by the agency (e.g. advertising measures) is expressly excluded if the agency has fulfilled its duty to inform or such duty was not recognizable to it, whereby minor negligence does not matter. In particular, the agency is not liable for legal costs, the client's own attorney fees or costs of judgment publications as well as for any claims for damages or other claims by third parties; the client shall hold the agency harmless in this regard.
13.3
Claims for damages by the client shall expire six months from knowledge of the damage; in any case, however, after three years from the agency's act of infringement. Claims for damages are limited to the net order value.
14. Data Protection
The customer agrees that their personal data, namely name/company, profession, date of birth, company registration number, authority to represent, contact person, business address, and other addresses of the customer, telephone number, fax number, email address, bank details, credit card information, VAT number will be processed, stored, and managed automatically for the purposes of contract fulfillment and customer support as well as for advertising purposes, for example, to send offers, promotional brochures, and newsletters
(in paper and electronic form), and for the purpose of referencing the customer’s existing or previous business relationship (reference notice). The client agrees to receive electronic mail for advertising purposes until further notice.
This consent can be revoked at any time in writing via email, fax, or letter to the contact details provided at the end of the terms and conditions.
15. Applicable Law
The contract and all mutual rights and obligations derived therefrom, as well as claims between the agency and the client, are subject to Austrian substantive law, excluding its conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods.
16. Place of performance and jurisdiction
16.1
The place of performance is the registered office of the agency. The risk passes to the customer as soon as the agency has handed over the goods to the forwarding company of its choice.
16.2
The court of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship shall be the court having jurisdiction at the registered office of the agency. Notwithstanding this, the agency is entitled to sue the customer at their general place of jurisdiction.
16.3
As far as designations referring to natural persons are stated only in the male form in this contract, they refer equally to women and men. When applying the designation to specific natural persons, the respective gender-specific form should be used.
Sery* Brand Communications GmbH
FN 95026w
UID: ATU 22694706
Ruflinger Straße 155
4060 Leonding
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