GENERAL TERMS AND CONDITIONS
of the advertising agency OSCON e.U.
1.1. The advertising agency OSCON eU – hereinafter referred to as agency –
renders its services solely on the basis of these general terms and conditions. These also apply to all future business relationships, even if no express reference is made to them.
1.2. Subsidiary agreements, reservations, changes or additions to these General Terms and Conditions must be made in writing in order to be valid;
this also applies to deviations from the written form requirement.
1.3Conflicting or deviating terms and conditions of the contractual partner, even if known, only become effective if they are expressly recognized in writing by the agency.
1.4. Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision is replaced by an effective one
to replace it that comes closest to the sense and purpose.
conclusion of contract
2.1. The basis for the conclusion of the contract is the respective offer from the agency or the customer’s order, in which the scope of services and the remuneration are recorded. The agency’s offers are subject to change and non-binding.
2.2. If the customer places an order, he is bound to these two weeks from its receipt by the agency. The contract is concluded when the agency accepts the order.
Acceptance must be made in writing (e.g. by way of an order confirmation), unless the agency clearly indicates (e.g. by taking action on the basis of the order) that it will accept the order.
Scope of services, order processing and cooperation obligations of the customer
3.1. The scope of the services to be provided results from the customer’s order or the service description or the information in the contract. Subsequent changes to the service content must be in writing.
3.2. All of the agency’s services (in particular all preliminary drafts, sketches, etc.) must be checked by the customer and approved within three days. If they are not released in good time, they are deemed to have been approved by the customer.
3.3. The customer will immediately provide the agency with all information and documents that are required for the provision of the service. He will inform you of all processes that are important for the execution of the order, even if these circumstances only become known during the execution of the order. The customer wears it
Expenses incurred due to the fact that work has to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information.
3.4. The customer is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any existing copyrights, trademark rights or other rights of third parties. The Agency shall not be liable for any violation of such rights. If the agency is sued for such an infringement, the customer shall indemnify and hold the agency harmless; he accuses her of all disadvantages
replace which you incur as a result of claims made by third parties.
External services / commissioning third parties
4.1. The agency is entitled, at its own discretion, to perform the service itself, to use third parties for the provision of contractual services and/or to substitute such services.
4.2. The commissioning of procurement assistants takes place either in the own name or in the name of the customer, but in any case on account of the customer.
4.3. The agency will carefully select procurement assistants and ensure that they have the necessary professional qualifications.
5.1. Agreements on deadlines and dates must be recorded or confirmed in writing. The agency undertakes to comply with the agreed deadlines. However, non-compliance with the deadlines only entitles the customer to assert his statutory rights if he grants the agency a reasonable grace period of at least 14 days
Has. This period begins with the receipt of a reminder letter to the agency.
5.2. After the grace period has expired without result, the customer can withdraw from the contract. An obligation to pay damages from the title of delay only exists in the event of intent or gross negligence on the part of the agency.
5.3. In any case, unavoidable or unforeseeable events – in particular delays at the agency’s contractors – release the agency from adhering to the agreed delivery date. The same applies if the customer with its obligations necessary to carry out the order (e.g. provision of documents or information),
is in default. In this case, the agreed date will be postponed at least to the extent of the delay.
Cancellation of the contract
In particular, the agency is entitled to withdraw from the contract if
the performance of the service is impossible for reasons for which the customer is responsible, or
is further delayed despite the setting of a grace period;
there are legitimate concerns about the creditworthiness of the customer and the customer does not make any advance payments at the request of the agency nor provide suitable security before the agency performs the service.
7.1. Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been rendered. The agency is entitled to demand advance payments to cover its expenses.
7.2. The fee is exclusive of statutory sales tax.
7.3. All agency services that are not expressly covered by the agreed fee will be remunerated separately. All out-of-pocket expenses incurred by the agency are borne by the client
7.4. The agency’s cost estimates are generally non-binding. If it is foreseeable that the actual costs will exceed the agency’s written estimate by more than 5%, 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 days of this notice and at the same time offers cheaper alternatives
7.5. The agency is entitled to reasonable remuneration for all agency work which, for whatever reason, is not carried out by the customer. With the payment of this remuneration, the customer acquires no rights to this work; Concepts, drafts and other documents that have not been implemented are to be returned to the agency immediately.
8.1. The agency’s invoices are due net cash without any deductions from the invoice date and, unless otherwise agreed, are payable within ten calendar days of receipt of the invoice. In the event of late payment, default interest of 10% pa shall apply
as agreed. Delivered goods remain the property of the agency until full payment has been made.
8.2. The customer undertakes to bear all costs and expenses associated with the collection of the claim, such as in particular collection expenses or other costs necessary for appropriate legal prosecution.
8.3. If the customer defaults in payment, the agency can demand immediate payment of all services and partial services rendered as part of other contracts concluded with the customer.
8.4. The customer is not entitled to offset his own claims against the agency’s claims, unless the customer’s claim has been recognized in writing by the agency or has been determined by a court. A right of retention of the customer is excluded.
9.1. The agency is entitled to an appropriate fee for participation in presentations, which, in the absence of an agreement, at least covers the agency’s entire personnel and material expenses for the presentation as well as the costs of all third-party services.
9.2. If the agency does not receive an order after the presentation, all of the agency’s services, in particular the presentation documents and their content, remain the property of the agency; the customer is not entitled to continue to use them in any form whatsoever; the documents are to be returned to the agency immediately. The transmission of
Presentation documents to third parties and their publication, duplication, distribution or other use is not permitted without the express consent of the agency.
9.3. Likewise, the customer is prohibited from further use of the ideas and concepts introduced in the course of the presentation, regardless of whether the ideas and concepts are protected by copyright. By paying the presentation fee, the customer does not acquire any exploitation or usage rights to the services presented.
9.4. If the ideas and concepts introduced in the course of a presentation for solving communication tasks are not used in advertising material designed by the agency, the agency is entitled to use the ideas and concepts presented elsewhere.
Proprietary Rights and Copyright Protection
10.1. All agency services including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, concepts, etc.), including individual ones
Parts thereof remain the property of the agency, as do the individual workpieces and draft originals, and can be withdrawn by the agency at any time – especially upon termination of the
contractual relationship – be reclaimed. By paying the fee, the customer only acquires the right to use (including duplication) for the agreed purpose and to the agreed extent of use. Unless otherwise agreed with the agency, the customer may only use the agency’s services himself, exclusively in Austria and only for the duration of the agency contract. The acquisition of usage and exploitation rights to the agency’s services always requires full payment of the agency’s fees
invoiced fees in advance.
10.2. Changes to the agency’s services, such as 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.
10.3. The agency’s consent is required for the use of agency services that go beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright. The agency and the author are entitled to separate appropriate remuneration for this.
10.4. For the use of agency services or advertising material for which the agency has developed conceptual or design templates, after the agency contract has expired, regardless of whether this service is protected by copyright or not – also the
Agency approval required.
10.5. In return, the agency is entitled to the full agency fee agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after the end of the contract, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.
11.1. The agency is entitled to refer to the agency and possibly to the author on all advertising material and in all advertising measures, without the customer being entitled to a fee for this.
11.2. Subject to the written revocation of the customer, which is possible at any time, the agency is entitled to refer to the existing business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo.
Warranty and Compensation
12.1. The customer must assert and justify any complaints in writing immediately, but in any case within three days after the service by the agency. In the case of justified and timely complaints, the customer only has the right to have the agency improve or replace the service.
12.2. If the notice of defects is justified, the defects will be remedied within a reasonable period of time, whereby the customer enables the agency to take all necessary measures to examine and remedy the defects. The agency is entitled to refuse to improve the service if
this is impossible or involves a disproportionate amount of effort for the agency.
12.3. The reversal of the burden of proof according to § 924 ABGB at the expense of the agency is excluded. The existence of the defect at the time of handover, the time at which the defect was determined and the notification of defects must be proven by the customer.
12.4. Claims for damages by the customer, in particular due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential damage or tort
excluded, unless they are based on intent or gross negligence on the part of the agency.
12.5. Any claim for damages can only be asserted within six months of becoming aware of the damage.
12.6. Claims for damages are limited to the amount of the order value excluding taxes.
13.1. The agency will carry out the work assigned to it in compliance with generally recognized legal principles and will inform the customer in good time of any risks that are recognizable to them.
Any liability of the agency for claims raised against the customer as a result of the advertising measure (the use of an identifier) is expressly excluded if the agency has fulfilled its duty to inform; in particular, the agency is not liable for legal costs, the customer’s own legal fees or costs for the publication of judgments, as well as for any claims for damages or similar claims by third parties.
13.2. Within the framework of the statutory provisions, the agency is only liable for damage if intent or gross negligence can be proven. Liability for slight negligence is excluded. The injured party has to prove the existence of gross negligence.
Austrian law shall apply exclusively to the legal relationship between the customer and the agency, to the exclusion of international reference standards. The provisions of the UN sales law do not apply.
Fulfillment and jurisdiction
15.1. The place of fulfillment is the registered office of the agency.
15.2. The place of jurisdiction for all disputes arising directly between the agency and the customer is agreed to be the Austrian court which is locally and factually responsible for the agency’s registered office.