1.1 Florian Stangl advertising agency (hereinafter "Agency") provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the client, even if no explicit reference is made to them.
1.2 The version valid at the time of contract conclusion shall apply. Deviations from these terms and any supplementary agreements with the client are only effective if confirmed in writing by the Agency.
1.3 Any terms and conditions of the client are not accepted, even if known, unless expressly and individually agreed in writing. The Agency expressly objects to the client's GTC. No further objection by the Agency is required.
1.4 Changes to the GTC will be communicated to the client and are deemed agreed if the client does not object in writing within 14 days; the client will be expressly informed of the significance of silence in the notification.
1.5 Should individual provisions of these GTC be invalid, this does not affect the binding nature of the remaining provisions and contracts concluded on their basis. The invalid provision shall be replaced by a valid one that comes closest to the intended purpose.
1.6 Offers by the Agency are non-binding and subject to change.
The Agency expressly informs the client before commissioning that providers of social media channels (e.g. Facebook, hereinafter "providers") reserve the right in their terms of use to reject or remove advertisements and presences for any reason. Providers are therefore not obligated to forward content and information to users. There is accordingly a risk — not calculable by the Agency — that advertisements and presences may be removed without cause. In the event of a complaint by another user, providers may allow a counter-statement, but content is removed immediately regardless. Restoring the original lawful state may take some time. The Agency works on the basis of these provider terms of use, over which it has no influence, and applies them to client orders. By placing an order, the client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The Agency intends to carry out the client's order to the best of its knowledge and in compliance with social media guidelines; however, given current terms of use and the ease with which users can assert rights violations to achieve removal of content, the Agency cannot guarantee that a commissioned campaign is accessible at all times.
If the prospective client has invited the Agency in advance to develop a concept, and the Agency accepts that invitation prior to conclusion of the main contract, the following applies:
3.1 By the invitation and the Agency's acceptance, the prospective client and the Agency enter into a contractual relationship ("pitching agreement"), which is also governed by these GTC.
3.2 The prospective client acknowledges that the Agency incurs significant costs in developing the concept, even though the client has not yet assumed any performance obligations.
3.3 The linguistic and graphic elements of the concept, to the extent they reach the level of a protected work, are protected under copyright law. The prospective client may not use or adapt these elements without the Agency's consent.
3.4 The concept also contains advertising-relevant ideas that do not reach the threshold of copyright protection. These ideas constitute the starting point of the creative process and may be considered the origin of a marketing strategy. Elements of the concept that are distinctive and give the marketing strategy its characteristic character are therefore protected. "Ideas" within the meaning of this agreement include in particular advertising slogans, advertising copy, graphics and illustrations, and advertising materials, even if they do not reach the copyright threshold.
3.5 The prospective client undertakes not to use or exploit the creative advertising ideas presented by the Agency within the concept, outside the framework of a subsequently concluded main contract.
3.6 If the prospective client believes that ideas presented by the Agency were already known to them before the presentation, they must notify the Agency by email within 14 days of the presentation date, providing evidence that allows a chronological assignment.
3.7 Otherwise, the parties assume that the Agency presented a new idea to the prospective client. If the client uses the idea, it is assumed that the Agency was instrumental in doing so.
3.8 The prospective client may be released from their obligations under this section by payment of appropriate compensation plus 20% VAT. Release takes effect only upon full receipt of the compensation payment.
4.1 The scope of services is defined by the service description in the agency contract or order confirmation and any briefing protocol ("offer documents"). Subsequent changes to the scope require written confirmation by the Agency. Within the framework set by the client, the Agency has creative freedom in fulfilling the order.
4.2 All Agency deliverables (in particular drafts, sketches, artwork, proofs, blueprints, copies, colour prints, and electronic files) must be reviewed and approved by the client within three working days of receipt. If approval is not given in time, the deliverable is deemed approved.
4.3 The client shall provide the Agency with all information and documents required to perform the services in a timely and complete manner, and shall inform the Agency of all circumstances relevant to execution of the order, even if these only become known during performance. The client bears the cost of any work that must be repeated or delayed due to incorrect, incomplete, or subsequently changed information.
4.4 The client is also obligated to check any materials provided (photos, logos, etc.) for potential copyright, trademark, or other third-party rights (rights clearance) and guarantees that these materials are free of third-party rights and may be used for the intended purpose. The Agency shall not be liable for infringement of such third-party rights through provided materials in cases of minor negligence or after fulfilling its duty to warn. If the Agency is held liable by a third party for such infringement, the client shall indemnify and hold the Agency harmless, including costs of appropriate legal representation. The client undertakes to support the Agency in defending against any third-party claims and shall provide all relevant documents without being asked.
5.1 The Agency is entitled at its own discretion to perform the services itself, to engage qualified third parties as subcontractors, and/or to substitute such services ("third-party services").
5.2 Commissioning of third parties is carried out either in the Agency's own name or in the name of the client. The Agency will select third parties carefully and ensure they have the required professional qualifications.
5.3 Where the Agency commissions necessary or agreed third-party services, those contractors are not the Agency's vicarious agents.
5.4 The client shall assume obligations towards third parties that extend beyond the contract term. This applies expressly even in the event of termination of the agency contract for good cause.
6.1 Stated delivery or performance deadlines are, unless expressly agreed as binding, approximate and non-binding. Binding deadline agreements must be documented in writing or confirmed in writing by the Agency.
6.2 If delivery/performance by the Agency is delayed for reasons beyond its control — such as force majeure or other unforeseeable events not avoidable by reasonable means — performance obligations are suspended for the duration and extent of the obstacle and deadlines are extended accordingly. If such delays last more than two months, both the client and the Agency are entitled to withdraw from the contract.
6.3 If the Agency is in default, the client may only withdraw from the contract after having set the Agency a reasonable written cure period of at least 14 days, which has expired without result. Claims for damages by the client due to non-performance or delay are excluded, except in cases of proven intent or gross negligence.
7.1 The Agency is entitled to terminate the contract for good cause with immediate effect. Good cause exists in particular where:
7.2 The client is entitled to terminate the contract for good cause without setting a cure period, in particular where the Agency repeatedly breaches material provisions of the contract despite a written warning with a reasonable cure period of at least 14 days.
8.1 Unless otherwise agreed, the Agency's fee claim arises for each individual service as soon as it is performed. The Agency is entitled to demand advance payments to cover its costs. For order volumes with an (annual) budget of €10,000 or more, or orders extending over a longer period, the Agency is entitled to issue interim or advance invoices or to request instalment payments.
8.2 The fee is a net fee plus VAT at the statutory rate. In the absence of a specific agreement, the Agency is entitled to a fee at the market rate for services rendered and for granting copyright and trademark usage rights.
8.3 All Agency services not expressly covered by the agreed fee will be remunerated separately. All out-of-pocket expenses incurred by the Agency shall be reimbursed by the client.
8.4 Cost estimates by the Agency are non-binding. If it becomes foreseeable that actual costs will exceed the Agency's written estimate by more than 15%, the Agency will notify the client. The cost overrun is deemed approved if the client does not object in writing within three working days and simultaneously provide less expensive alternatives. A cost overrun of up to 15% requires no separate notification and is deemed approved by the client from the outset.
8.5 For all work by the Agency that is not executed by the client for any reason, the Agency is entitled to the agreed fee. Section 1168 ABGB (right of set-off) is excluded. Payment of the fee does not transfer any usage rights to work already performed; unexecuted concepts, drafts, and other documents must be returned to the Agency immediately.
9.1 The fee is due immediately upon receipt of invoice and without deduction, unless special payment terms have been agreed in writing for a specific case. This also applies to pass-through charges for all out-of-pocket expenses and other costs. Goods delivered by the Agency remain the Agency's property until full payment of the fee including all ancillary obligations.
9.2 In the event of payment default by the client, statutory default interest applicable to commercial transactions shall apply. The client also undertakes, in the event of payment default, to reimburse the Agency for resulting reminder and collection costs to the extent necessary for appropriate legal enforcement. This includes at minimum the cost of two reminders at the market rate (currently at least €20.00 per reminder) and one reminder from a lawyer engaged for collection. The assertion of further rights and claims is not affected.
9.3 In the event of payment default, the Agency may declare all services and partial services rendered under other contracts with the client immediately due.
9.4 Furthermore, the Agency is not obligated to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee is not affected.
9.5 If payment in instalments has been agreed, the Agency reserves the right, in the event of failure to pay instalments or ancillary charges on time, to demand immediate payment of the entire outstanding balance (acceleration clause).
9.6 The client is not entitled to set off its own claims against claims of the Agency, unless the client's claim has been acknowledged in writing by the Agency or established by a court.
10.1 All Agency services, including those from presentations (e.g. ideas, sketches, drafts, scribbles, artwork, concepts, negatives, slides), including individual parts thereof, as well as individual workpieces and original drafts, remain the property of the Agency and may be reclaimed at any time — in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right to use the work for the agreed purpose. Unless otherwise agreed, the client may only use the Agency's services within Austria. The acquisition of usage and exploitation rights to Agency services requires in all cases full payment of the fees invoiced. If the client uses the services prior to full payment, such use is based on a revocable loan.
10.2 Modifications or adaptations of Agency services — in particular further development by the client or third parties acting on its behalf — are only permitted with the express consent of the Agency and, where the services are copyright-protected, of the author.
10.3 Use of Agency services beyond the originally agreed purpose and scope requires the Agency's consent, regardless of whether the service is copyright-protected. The Agency and the author are entitled to separate appropriate remuneration for such use.
10.4 Use of Agency services or advertising materials for which the Agency has developed conceptual or design work after expiry of the agency contract also requires the Agency's consent, regardless of copyright protection.
10.5 For use pursuant to clause 10.4, the Agency is entitled in the 1st year after contract expiry to the full agency fee agreed in the expired contract. In the 2nd and 3rd year, only half and one quarter respectively of that fee. From the 4th year onwards, no agency fee is payable.
10.6 The client is liable to the Agency for any unlawful use in double the amount of the appropriate fee for such use.
11.1 The Agency is entitled to reference itself and, where applicable, the author on all advertising materials and measures, without any entitlement to payment by the client.
11.2 Subject to written revocation by the client at any time, the Agency is entitled to reference the existing or former business relationship with the client by name and logo on its own advertising media, in particular on its website (reference notice).
12.1 The client must notify the Agency of any defects immediately, and in any event within eight days of delivery/performance, and hidden defects within eight days of their discovery, in writing with a description of the defect; otherwise the service is deemed approved and warranty and damage claims as well as the right to rescind for error based on defects are excluded.
12.2 In the event of a justified and timely defect notice, the client is entitled to have the delivery/service improved or replaced by the Agency. The Agency will remedy defects within a reasonable period, with the client enabling all measures necessary for investigation and remediation. The Agency is entitled to refuse improvement if it is impossible or involves disproportionate effort. In that case, the client is entitled to statutory rescission or price reduction rights. In the case of improvement, the client is responsible for returning the defective (physical) item at their own cost.
12.3 The client is also responsible for reviewing services for legal compliance, in particular under competition, trademark, copyright, and administrative law. The Agency is only obligated to a basic legal review. The Agency shall not be liable for the legal permissibility of content in cases of minor negligence or after fulfilling any duty to warn, where such content was prescribed or approved by the client.
12.4 The warranty period is six months from delivery/performance. The right of recourse against the Agency pursuant to § 933b para. 1 ABGB expires one year after delivery/performance. The client is not entitled to withhold payments due to defects. The presumption rule of § 924 ABGB is excluded.
13.1 In cases of minor negligence, the Agency's liability and that of its employees, contractors, or other vicarious agents ("staff") for material or financial damages to the client is excluded, regardless of whether the damage is direct or indirect, loss of profit, consequential damages, damages due to delay, impossibility, positive breach of contract, culpa in contrahendo, or defective or incomplete performance. The existence of gross negligence must be proven by the injured party. Where the Agency's liability is excluded or limited, this also applies to the personal liability of its staff.
13.2 Any liability of the Agency for claims brought against the client on the basis of the Agency's services (e.g. an advertising measure) is expressly excluded where the Agency has fulfilled its duty to warn or where such duty was not recognisable to it, minor negligence not being prejudicial. In particular, the Agency is not liable for litigation costs, the client's own legal costs, costs of publication of judgments, or any damages or other claims by third parties; the client shall indemnify and hold the Agency harmless in this regard.
13.3 Damage claims by the client lapse six months after the client becomes aware of the damage, and in any event three years after the Agency's breach. Damage claims are limited in amount to the net order value.
The client consents to their personal data (name/company, profession, date of birth, company register number, authorised representatives, contact person, business address and other addresses, telephone number, fax number, email address, bank details, credit card data, VAT number) being collected, stored, and processed by automated means for the purpose of contract performance and client management, as well as for the Agency's own advertising purposes — for example to send offers, promotional materials, and newsletters (in paper and electronic form) — and for reference notices regarding the existing or former business relationship.
The client consents to receiving electronic communications for advertising purposes until further notice.
This consent may be revoked at any time in writing by email, fax, or letter to [email protected].
The contract and all mutual rights, obligations, and claims between the Agency and the client are governed by Austrian substantive law, excluding its conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
16.1 The place of performance is the Agency's registered address. In the case of dispatch, risk passes to the client as soon as the Agency hands the goods over to the carrier of its choice.
16.2 The court with subject-matter jurisdiction at the Agency's registered address is agreed as the venue for all disputes between the Agency and the client arising from this contractual relationship. Notwithstanding this, the Agency is entitled to sue the client at the client's general place of jurisdiction.
16.3 Where this contract uses gender-specific terms in the masculine form only, they refer equally to women and men. When applied to specific natural persons, the appropriate gender-specific form shall be used.