GENERAL TERMS AND CONDITIONS of Sery* Brand Communications GmbH
1. Validity, conclusion of contracts
Sery* Brand Communications GmbH (called the “Agency” below) provides its services solely on the basis of the General Terms and Conditions (T&C) described below. These T&C apply to all legal relationships between the Agency and the customer even when no explicit reference is made to these relationships. These T&C apply solely to legal relationships with businesses, in other words B2B.
Every relationship shall be governed by the version of these T&C in force at the time of the signing of the contract. Any deviations from these T&C, and any supplementary agreements entered into with the customer, require written confirmation on the part of the Agency to be valid.
Any terms and conditions of the customer, even if they are known to the Agency, are excluded, unless express written agreement to the contrary has been reached for a particular case. The Agency expressly opts out of T&C of the customer. No further opting out of customer’s T&C by the Agency shall be required.
The customer will be notified of any amendments to these T&C and these amendments shall be deemed to be accepted by the customer unless he submits his written objection to them within 14 days. The customer shall be expressly advised of the consequences of not responding.
Should individual provisions of these T&C be or become legally invalid, this affects neither the validity of the other provisions, nor contracts concluded on the basis of these invalid provisions. The invalid provision shall be replaced with a valid provision that comes as close as possible to the purport of the invalid provision.
All products, services and quotations offered by the Agency are non-binding.
2. Social media channels
Before the customer places an order, the Agency expressly advises him that the providers of “social media channels” (e.g. Facebook, called “providers” below) reserve the right in their conditions of use to reject or remove advertisements or an advertising presence at their discretion. Accordingly, providers are under no obligation to forward any content or information to their users. Consequently, there is an imponderable risk for the Agency that advertisements or an advertising presence are removed for no reason. Although providers grant the opportunity to answer a complaint lodged by another user, content is nevertheless removed immediately even in such cases. If this happens, restoring the original rightful state of affairs can take some time. The Agency works on the basis of these conditions of use of providers over which it has no influence and makes them a condition of any order placed with the Agency by the customer. When placing an order, the customer expressly acknowledges that these third-party conditions of use also influence the rights and obligations in any contractual relationship between the customer and the Agency. The Agency strives to perform the commission it receives from the customer in accordance with its own beliefs and values and to abide by the directives of “social media channels”. However, the conditions of use currently in force and the ease with which any user can claim that legislation has been violated and so cause content to be removed mean that the Agency cannot guarantee that the commissioned campaign will be available at all times.
3. Protection of concept and ideas
If a potential customer has invited the Agency to develop a concept in advance, and if the Agency has accepted this invitation before conclusion of the prime contract, the following provisions shall apply:
The potential customer’s issuing of the invitation and the Agency’s acceptance of it shall be deemed to constitute a contractual relationship (“pitching agreement”). This agreement is also governed by these T&C.
The potential customer acknowledges that by developing the concept the Agency already performs cost-intensive groundwork even though it has not yet undertaken any obligation to perform.
Provided that they reach the threshold of originality, the textual and graphic components of the concept are protected by copyright law. Under the terms of copyright law, the potential customer is not permitted to exploit or modify these elements without the Agency’s consent.
The concept also contains ideas relevant to advertising that have not reached the threshold of originality and are therefore not protected by copyright law. These ideas represent the start of every creative process and can be defined as the spark that lights the blue touchpaper for all that follows and consequently as the origin of every marketing strategy. Accordingly, the elements of a concept that are protected are those that are distinctive and give the marketing strategy its own particular character. Under the terms of this agreement, advertising slogans, advertising copy, graphics and illustrations, advertising media etc. in particular, even if they do not reach the threshold of originality, are deemed to constitute an idea.
The potential customer shall refrain from commercial exploitation outside the regulatory confines of a prime contract to be concluded at a later date of the creative advertising ideas presented by the Agency as part of the work on the concept, or from allowing such exploitation, or from using the ideas or from allowing their use.
In the event that the potential customer is of the opinion that the Agency has presented ideas to him that he himself had before the presentation, he shall inform the Agency of this by e-mail no later than 14 days after the day of the presentation, submitting evidence that makes it possible to determine when the ideas in question were first put forward.
Otherwise the contract parties shall assume that the Agency has presented an idea to the potential customer that is new to him. If the potential customer uses the idea it shall be assumed that the Agency has rendered him a service.
The potential customer can release himself from the obligations this places on him by payment of suitable compensation plus value added tax. The potential customer is released from these obligations only after the compensation paid has been received in full by the Agency.
4. Scope of services, fulfilment and customer’s duty to cooperate
The scope of the services to be performed is determined by the specification of services contained in the Agency contract or by an order confirmation issued by the Agency and the minutes of the briefing (“quotation documents”), where applicable. Subsequent amendments to the nature of the services require written confirmation by the Agency. When carrying out the order, the Agency has creative freedom within the parameters defined by the customer.
The customer shall inspect all works supplied by the Agency (especially all dummies, sketches, final artwork, blueprints, copies, colour reproductions, proofs and electronic files) and approve them no later than three working days after he receives them. If the Agency receives no feedback from the customer within this period the works shall be deemed to be approved.
The customer shall provide the Agency in good time with access to all the information and documentation necessary for performing the services. The customer shall inform the Agency of all circumstances relevant to fulfilment of the order, including those which only become apparent during fulfilment. If the Agency is forced to repeat any tasks, or postpone performance of them, as a result of incorrect, incomplete or subsequently amended information supplied by the customer, any costs incurred by such repetition or postponement shall be borne by the customer.
Further, the customer is obliged to check that documentation supplied for fulfilment of the order (photos, logos, texts, etc.) is not protected by any copyrights, trademark and intellectual property rights, or any other rights held by third parties (rights clearance), and guarantees that the documentation is not subject to such rights and can be used for the intended purpose. The Agency accepts liability solely in cases of ordinary negligence or after having fulfilled its duty to warn and solely in the context of its internal relationship with the customer, but not if a third party’s rights are violated by the documents supplied. If a claim is made against the Agency by a third party on the grounds that such a rights violation has occurred, the customer shall indemnify the Agency and hold the Agency harmless; the customer shall make good all harm caused to the Agency by a third party’s claim, especially the costs of appropriate legal representation. The customer undertakes to support the Agency with warding off any claims made by third parties. To this end, the customer is obliged to provide the Agency with all the necessary documents without being requested to do so.
5. Outsourced services / work placed with third parties
The Agency is free to choose whether to perform the work itself, to engage third parties with relevant expertise as subcontractors to perform services included in the contract, and/or to delegate such tasks (“outsourced services”).
The Agency engages third parties for the purposes of outsourced services either in its own name or on behalf of the customer. These third parties will be carefully selected by the Agency which will ensure that they possess the requisite professional qualifications. 5.3 Any obligations to third parties that subsist after expiry of the contract shall be met by the customer. This applies expressly also in the case of cancellation of the contract with the Agency for good cause.
6. Delivery periods
Stated periods of delivery or performance are only approximate and non-binding unless they have been expressly agreed as binding. Binding periods agreed upon are valid only when made in writing and confirmed in writing by the Agency.
If delivery or performance by the Agency is delayed for reasons beyond the Agency’s control such as force majeure and other unforeseeable events that could not be averted by reasonable means the performance obligations shall be suspended for the duration and according to the extent of the obstacle. In such cases, the delivery or performance period shall be extended accordingly. If such delays last for more than two months, the customer and the Agency are entitled to withdraw from the contract.
If the Agency is behind schedule the customer is entitled to withdraw from the contract only after having granted the Agency an appropriate grace period in writing of at least 14 days and if this grace period has elapsed and been to no avail. Claims for compensation made by the customer due to non-fulfilment or delay are inadmissible except in cases of demonstrable wilful intent or gross negligence.
7. Premature termination
The Agency is entitled to terminate the contract prematurely with immediate effect and for good cause. In particular, good cause shall be deemed to have arisen if
- circumstances for which the customer is responsible render performance impossible or, granting of a grace period of 14 days notwithstanding, delay performance further;
- despite a written warning and granting of a grace period of 14 days the customer persists in breaching material contractual obligations such as payment of a due sum or the duty to cooperate;
- there are justifiable grounds for doubting the customer’s solvency and the customer fails to make advance payments or to provide appropriate security before performance begins when requested to do so by the Agency.
The customer is entitled to terminate the contract for good cause and with immediate effect. In particular, good cause shall be deemed to have arisen if despite a written warning and granting of a grace period of at least 14 days for rectifying the breach of contract the Agency persists in breaching material terms of the contract.
Unless agreed otherwise, the Agency is entitled to submit an invoice for every single task as soon as it has been completed. The Agency is entitled to ask for advance payments to cover its expenses. For orders with an (annual) budget of €10,000 or orders that cover a longer period the Agency is entitled to issue invoices for interim settlements or call in payments on account.
The fee is a net sum to which value added tax is added. If no agreement to the contrary has been concluded in a particular case the Agency is entitled to remuneration at current market rates for the services performed and the ceding of copyrights and trademark and intellectual property rights.
Separate invoices will be issued for all work performed by the Agency that is not explicitly covered by the agreed fee. The customer shall reimburse the Agency for all cash outlay incurred.
Cost estimates issued by the Agency are without obligation. If it becomes apparent that the actual costs will exceed those in the Agency’s written quote by more than 15% the Agency shall notify the customer of the higher costs. If the customer submits no written objection within three working days following this notification, at the same time citing less costly alternatives, the cost increase shall be deemed to have been accepted. If the cost increase is below 15% no separate notification is required. A cost increase of below 15% is deemed to have already been accepted by the Customer.
If the customer unilaterally alters or stops any work that the Agency was commissioned to perform without consulting the Agency – without prejudice to the other ongoing services performed for the customer by the Agency – he is obliged to pay the agreed fee for all work completed up to that point and to reimburse all costs incurred. If the customer’s termination of the work is not due to grossly negligent or wilful dereliction of duty on the part of the Agency, the customer shall additionally pay the Agency the full fee (commission) agreed for this work. In such cases, deduction of expenditure not incurred pursuant to § 1168 ABGB (Allgemeines bürgerliches Gesetzbuch, Austrian Civil Code) is inadmissible. Further, the Agency shall be indemnified and held harmless with regard to any third-party claims, especially from contractors of the Agency. In no case does payment of remuneration entitle the customer to exploit works already supplied; on the contrary, concepts, drafts and other documents that have not been implemented must be returned to the Agency forthwith.
9. Payment, reservation of proprietary rights
Payment of the fee is due immediately and in full on receipt of the invoice unless other terms of payment have been agreed in writing for a particular case. This also applies to the billing of the customer for all cash outlay and other expenses. Goods supplied by the Agency remain property of the Agency until the fee including all incidental payables has been paid in full.
Should the customer fall into arrears with payment, interest on arrears will be charged at the rate applicable for business conducted with companies. Should he fall into arrears with payment the customer is further obliged to reimburse the Agency for all reminder fees and debt collection fees inasmuch as these are incurred by necessary legal proceedings. In every case, this shall include the cost of two written reminders at the current market rate of at least €20.00 per reminder, and one written reminder from a solicitor engaged for the purposes of debt recovery. The assertion of other rights and claims is not affected.
Should the customer fall into arrears with payment the Agency is entitled to demand immediate payment for all services provided and all partial performance of services which are the subject of other contracts concluded with the customer.
Further, the Agency is under no obligation to provide any other services until payment of the outstanding amount has been received (right of retention). This does not affect the obligation to pay remuneration.
If payment in instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding amount in the event that payment of instalments or secondary charges is overdue (default).
The customer is not entitled to offset amounts receivable against amounts payable to the Agency unless the Agency has acknowledged the customer’s claim in writing or had it legally acknowledged.
10. Proprietary rights and copyright
All services provided by the Agency including those from presentations (e.g. suggestions, ideas, sketches, dummies, scribbles, layouts, final artwork, concepts, negatives, slides) and parts thereof remain property of the Agency. The same applies to the individual workpieces and originals of drafts. The Agency can demand the return of all these pieces of work at any time, particularly on termination of the contract. On paying the fee, the customer acquires the right to use the work for the agreed purpose. However, unless agreed otherwise the customer is not permitted to use the work provided by the Agency outside Austria. Acquisition of rights of use and exploitation to works provided by the Agency requires in every case full payment of the corresponding fees for which the Agency has issued invoices. If the customer uses the works before full payment has been made this use shall be deemed to be on the basis of a loan agreement that can be revoked at any time.
Modifications to works provided by the Agency, in particular their further development by the customer or by third parties engaged by the customer, require the express permission of the Agency and, if the works are protected by copyright, of the copyright holder.
Use of works provided by the Agency that goes beyond the purpose and scope of use that was originally agreed requires the Agency’s consent, regardless of whether the work in question is protected by copyright. In such case the Agency and the copyright holder are entitled to appropriate remuneration.
Following expiry of the contract with the Agency, the Agency’s consent is also required for the use of works provided by the Agency and of advertising media for which the Agency performed work on drafts for concepts or designs, regardless of whether this work is protected by copyright.
For types of use such as those described in item 4 above the Agency shall, in the first year following expiry of the contract, be entitled to the full remuneration as agreed in the contract that has just expired. In the second and third years following expiry of the contract, the Agency shall be entitled to 50% and 25% of this remuneration respectively. From the fourth year after expiry of the contract onward, no remuneration need be paid to the Agency.
The customer is liable to the Agency for any unlawful use, in the event of which he shall pay the Agency twice the sum agreed as appropriate remuneration for this use.
The Agency has the right to refer to the Agency and, if applicable, the copyright holder, in all advertising media and all publicity measures without the customer’s being entitled to any remuneration for this.
Subject to revocation by the customer, which can be issued in writing at any time, the Agency is entitled to refer to the existing or previously existing business relationship with the customer in the Agency’s own advertising media and on its website by displaying the customers’ company name and logo (reference).
The customer is obliged to notify the Agency without delay, at the latest within eight days of delivery/performance by the Agency, of any flaws or errors, and to notify the Agency of any hidden flaws or errors within eight days of their becoming apparent, in both cases in writing and including a description of the flaw or error. Failure to do so shall constitute acceptance of the work provided. In such case, assertion of warranty claims or claims for damages or the right to avoidance on account of mistake is inadmissible.
If a flaw is reported within the period stipulated and with good cause, the customer is entitled to rectification or replacement of the delivery/performance by the Agency. The Agency will rectify the flaw within a reasonable period. The customer shall supply the Agency with all resources and materials necessary for inspecting and rectifying the flaw. The Agency has the right to refuse to improve the work if this is impossible or would incur unreasonable costs for the Agency. In this case, the customer has the right to withdraw from the contract or demand a price reduction. In the case of rectification it is the customer’s responsibility to ship the flawed (physical) item and to bear the costs of this.
It is also the customer’s responsibility to ascertain the legal admissibility of the work, especially with regard to competition law, trademark law, copyright law and administrative law. The Agency is obliged to conduct no more than a superficial check of its legal admissibility. In cases of ordinary negligence, or following fulfilment of a duty to warn the customer, the Agency accepts no liability for the legal admissibility of content that was stipulated or approved by the customer.
The warranty period is six months following delivery/performance. The right of recourse to the Agency pursuant to § 933b Section 1 ABGB (Allgemeines bürgerliches Gesetzbuch, Austrian Civil Code) expires one year following delivery/performance. The customer is not entitled to withhold payments because of complaints. The presumption provision pursuant to § 924 ABGB (Austrian Civil Code) is inadmissible.
13. Liability and product liability
In cases of ordinary negligence, the Agency and its employees, contractors or other subcontractors (“people”) shall not be held liable for damage to property or asset losses suffered by the customer, be it direct or indirect damages, loss of profit or consequential harm caused by a defect, loss caused by delay, impossibility, positive violation of a contractual duty, fault at contract formation, or inadequate or incomplete performance. An instance of gross negligence must be proven by the injured party. The exclusion or limitation of the Agency’s liability applies in equal measure to the personal liability of its “people”.
All liability of the Agency for claims made against the customer as a result of work performed by the Agency (e.g. publicity measures) is expressly excluded if the Agency has fulfilled its obligation to provide notification or if the need for this obligation was not apparent to the Agency, ordinary negligence causing no harm. In particular, the Agency is not liable for legal costs, customer’s own lawyer’s fees or the costs of issuing judgements, or for any claims for compensation or other third-party claims; in such cases the customer shall indemnify the Agency and hold it harmless.
Customer’s claims for compensation lapse six months after the damage became known, or, at the latest, three years after the Agency’s act of infringement. Claims for compensation shall be no higher than the net value of the order.
The customer consents to the electronic generation, storing and processing of his personal data, specifically his name/company, profession, date of birth, company register number, powers to represent, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, and VAT number for the purposes of contract performance and customer support and for the Agency’s own marketing purposes such as mailing of offers, advertising brochures and newsletters (in printed and electronic form) and for the purposes of referring to the existing or previously existing business relationship with the customer (reference). The customer consents that e-mails may be sent to him for advertising purposes until this consent is withdrawn.
This consent can be withdrawn in writing at any time by e-mail, fax or letter to the addresses given at the end of these T&C.
15. Applicable law
The contract and all the mutual rights and obligations that derive from it, as well as entitlements between the Agency and the customer, are governed by substantive Austrian law with the exclusion of references to international law and the UN Convention on Contracts for the International Sale of Goods.
16. Place of fulfilment and place of jurisdiction
Place of fulfilment is the headquarters of the Agency. When shipping goods, risk passes to the customer as soon as the Agency has handed over the goods to the carrier of its choice.
It is agreed that the court of jurisdiction for any legal disputes that may arise between the Agency and the customer in connection with this contract will be the court that has jurisdiction ratione materiae for the headquarters of the Agency. However, the Agency has the right to bring an action against the customer at his court of jurisdiction.
Any references in this contract to natural persons that are in the masculine form apply to women and men in equal measure. When applying the term to particular natural persons, the appropriate gender-specific term is to be used.
Sery* Brand Communications GmbH
VAT no.: ATU 22694706
Ruflinger Straße 155