General Terms and Conditions

1. Validity; Conclusion of Contract

1.1. Anwert Digital GmbH (hereinafter referred to as the “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 customer, even if they are not expressly referred to. The GTC apply exclusively to legal relationships with entrepreneurs, i.e. B2B.

1.2. The version valid at the time of the conclusion of the contract shall be authoritative in each case. Deviations from these GTC and other supplementary agreements with the customer are only effective if they are confirmed in writing by the agency.

1.3. Any terms and conditions of the customer, even if known, are not accepted, unless otherwise expressly agreed in writing in individual cases. The Agency expressly objects to any General Terms and Conditions of the Customer. No further objection to the customer’s GTC by the agency is required.

1.4. Amendments to the GTC shall be notified to the customer and shall be deemed to be agreed if the customer does not object to the amended GTC in writing within 14 days; the customer shall be expressly informed of the significance of silence in the notification.

1.5. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.

2. Social Media Channels

The Agency expressly informs the customer before placing an order that the providers of “social media channels” and advertising networks (e.g., Facebook or Google, hereinafter referred to as: providers) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore an unquantifiable risk for the agency that advertisements and appearances may be removed without cause. In the event of a complaint by another user, the providers do allow for a counter-statement, but even in this case, the content is immediately removed. The restoration of the original, lawful state can take some time in this case. The Agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer’s order on them. The customer expressly acknowledges with the placement of the order that these terms of use co-determine the rights and obligations of any contractual relationship. The Agency intends to execute the customer’s order to the best of its knowledge and belief and to comply with the guidelines of “social media channels.” However, due to the currently valid terms of use and the easy possibility for any user to claim legal infringements and thus achieve the removal of content, the Agency cannot guarantee that the commissioned campaign will be available at all times.

3. Concept and Idea Protection

If the potential customer has already invited the Agency to create a concept in advance, and the Agency accepts this invitation before the conclusion of the main contract, the following regulation applies:

3.1. Already by the invitation and the acceptance of the invitation by the Agency, the potential customer and the Agency enter into a contractual relationship (“Pitching Contract”). These GTC also form the basis of this contract.

3.2. The potential customer acknowledges that the Agency incurs cost-intensive preliminary expenses already with the concept development, even though it has not yet assumed any performance obligations.

3.3. The concept, in its linguistic and graphic parts, insofar as they reach the level of originality, is protected by Austrian copyright law. Use and processing of these parts without the Agency’s consent is not permitted to the potential customer, already due to Austrian copyright law.

3.4. The concept also contains advertising-relevant ideas that do not reach the level of originality and therefore do not enjoy the protection of Austrian copyright law. These ideas are at the beginning of every creative process and can be defined as the spark for everything subsequently produced and thus as the origin of a marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic imprint are protected. Ideas within the meaning of this agreement are, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach the level of originality.

3.5. The potential customer undertakes to refrain from commercially exploiting or having exploited, or using or having used, these creative advertising ideas presented by the Agency within the framework of the concept outside the corrective of a main contract to be concluded later.

3.6. If the potential customer is convinced that ideas were presented to him by the Agency that he had already conceived before the presentation, he must notify the Agency of this by email within 14 days of the day of the presentation, providing evidence that allows for chronological attribution.

3.7. In the opposite case, the contracting parties assume that the Agency has presented a new idea to the potential customer. If the idea is used by the customer, it is to be assumed that the Agency was instrumental in its creation.

4. Scope of Services; Order Processing; Customer’s Obligations to Cooperate

4.1. The scope of services to be rendered results from the service description in the offer or any order confirmation by the Agency, as well as any briefing protocol (“Offer Documents”). Subsequent changes to the content of the service require written confirmation by the Agency. Within the framework specified by the customer, the Agency has freedom of design in fulfilling the order.

4.2. All services of the Agency (in particular, but not limited to, all preliminary drafts, sketches, final drawings, proof prints, blueprints, copies, color prints and electronic files) are to be reviewed by the customer and approved by him within seven 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.

4.3. The customer will make available to the Agency in a timely and complete manner all information and documents necessary for the provision of the service. He will inform the Agency of all circumstances relevant to the execution of the order, even if these only become known during the execution of the order. The customer bears the costs incurred if work has to be repeated or delayed by the Agency due to his incorrect, incomplete or subsequently changed information.

4.4. The customer is furthermore obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights, proprietary rights or other third-party rights (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of merely slight negligence or after fulfilling its duty to warn – in any case in the internal relationship with the customer – the Agency is not liable for an infringement of such third-party rights by documents provided. If the Agency is sued by a third party due to such a legal infringement, the customer shall hold the Agency harmless and indemnify it; he shall reimburse it for all disadvantages incurred by it due to a claim by third parties, in particular the costs of adequate legal representation. The customer undertakes to support the Agency in defending against any third-party claims. The customer shall provide the Agency with all documents for this purpose without being requested.

4.5. Place and Time of Performance: Unless otherwise agreed, the Agency shall perform the contractual services at its discretion at the location of the computer system or at the Agency’s business premises during the Agency’s normal working hours. If, exceptionally and at the customer’s request, services are provided outside normal working hours, the additional costs will be invoiced separately. The selection of the employee performing the contractual services is at the discretion of the Agency, which is also entitled to engage third parties for this purpose.

4.6 Support Services: The Agency undertakes to fulfill the contractual software programs according to the scope of services of the respective contractually agreed support class below:

• Information Service: The customer will be informed about new program versions, available updates, program developments, etc. at an appropriate time.
• Hotline Service: The Agency will be available to the customer during the Agency’s office hours for consultations regarding problems that may arise in connection with the use of the contractual software programs.
• Update Service: The Agency provides the customer with program updates provided by the manufacturer at the date specified by the Agency. These include corrections of errors, remedies for any program problems that do not occur during trial runs or practical use within the warranty period, improvements to the scope of services, and changes to the software programs due to legal changes.
• Installation of Program Updates: The Agency undertakes the installation or setup of the new program updates on the contractual computer system.

4.7. Error Correction: A fault to be remedied exists if the respective contractual software program exhibits behavior deviating from the corresponding service description/documentation in the latest valid version and this can be reproduced by the customer. Complaints about defects must be addressed to the Agency in writing. For the purpose of precise investigation of any errors that may occur, the customer is obliged to make the computer system used by him (in the case of systems in an online network with other computers, also the corresponding connection), software programs, protocols, diagnostic documents and data available free of charge to a reasonable extent for testing purposes during the Agency’s normal working hours and to support the Agency. Recognized errors for which the Agency is responsible shall be resolved by the Agency within a reasonable period. The Agency is released from this obligation if defects within the customer’s area hinder this and are not remedied by the customer. An error will be resolved by a software update or by appropriate workaround solutions.

4.8. Services Not Covered by This Contract:

• Unless explicitly regulated otherwise in this contract, the costs for travel, accommodation, and travel time for the persons commissioned by the Agency to perform the service.
• In the event of unauthorized use of services, the Agency is entitled to charge the customer for the incurred costs at the currently valid rates.
• Services that are caused by operating system, hardware changes and/or by changes to non-contractual mutually program-dependent software programs and interfaces.
• Individual program adaptations or new programming.
• Program changes due to changes in legal regulations, if they require a change in program logic.
• The Agency shall be released from all obligations under this contract if program changes are made to the contractual software programs without the prior consent of the Agency by employees of the customer or third parties, or if the software programs are not used as intended.
• Barrier-free design within the meaning of the Federal Act on the Equalization of Persons with Disabilities (Bundes-Behindertengleichstellungsgesetz – BGStG)”, this can be requested separately.
• The elimination of errors caused by the customer or third parties.
• Losses or damages arising directly or indirectly from acts or omissions in operation by the customer or user.
• Data conversions, restoration of data files and interface adaptations.

5. Third-Party Services; Engagement of Third Parties

5.1. The Agency is entitled, at its sole discretion, to perform the service itself, to use skilled third parties (as auxiliary persons according to § 1313a ABGB) in the provision of contractual services, and/or to substitute such services (“Third-Party Service”).

5.2. The engagement of third parties within the scope of a third-party service takes place either in the Agency’s own name or in the customer’s name. The Agency will carefully select these third parties and ensure that they possess the necessary professional qualifications.

5.3. The customer must assume obligations towards third parties that extend beyond the contract term. This expressly applies also in the event of termination of the agency contract for good cause.

6. Storage; Archiving and Handover of Data and Documents

6.1. All reports, print templates, films and illustrations must be properly and gratuitously stored by the Agency for a period of one year from the completion of the respective communication measure and handed over to the customer upon his request during this period. After the storage period has expired or in the event of termination of the contract before the expiry of this period, the documents must be handed over at the customer’s request, otherwise they must be destroyed. The costs for data acquisition, shipping, packaging, storage beyond the agreed period and, if applicable, the costs for removal and destruction as well as the associated activities and insurance shall be borne by the customer.

6.2. The Agency is entitled to immediately destroy documents no longer required, such as manuscripts, sketches, drafts of unexecuted advertising measures or similar.

7. Deadlines

7.1. Stated delivery or service periods are, unless expressly agreed as binding, only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by the Agency.

7.2. If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as force majeure events and other unforeseeable events that cannot be averted with reasonable means, the performance obligations shall be suspended for the duration and extent of the impediment, and the deadlines 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.

7.3. If the Agency is in default, the customer can only withdraw from the contract after having set the Agency a reasonable grace period of at least 30 days in writing and this period has expired without result. Claims for damages by the customer due to non-performance or delay are excluded.

8. Term and Termination

8.1. The contract comes into force upon signature by the customer and runs for an indefinite period.

8.2. Both parties are entitled to ordinary termination of the contracts with a notice period of 60 days. Termination requires written form, including the agreement of a change to the written form requirement.

8.3. The Agency is entitled to terminate the contract for good cause with immediate effect. Good cause exists in particular if

1. the performance of the service becomes impossible for reasons for which the customer is responsible, or is further delayed despite a grace period of 14 days being set;
2. the customer repeatedly violates essential obligations under this contract, such as payment of a due amount or cooperation obligations, despite a written warning with a grace period of 14 days;
3. there are justified concerns regarding the customer’s creditworthiness and the customer neither makes advance payments nor provides adequate security before the Agency’s performance upon request;
4. bankruptcy or other insolvency proceedings are applied for, opened, or rejected for lack of assets against the other contracting party;

8.4. The customer is entitled to terminate the contract for good cause if the Agency violates essential provisions of this contract despite a written warning and setting a grace period of at least 30 days to remedy the breach of contract.

8.5. Additionally, both parties have an extraordinary right to premature termination without notice (with immediate effect) in the event of bankruptcy or acquisition.

9. Fee

9.1. Unless otherwise agreed, the Agency’s fee claim arises for each individual service as soon as it has been rendered. The Agency is entitled to demand advance payments to cover its expenses. For orders with an (annual) budget of €7,000 or more, or those extending over a longer period, the Agency is entitled to issue interim invoices and advance invoices or to call for down payments.

9.2. The fee is understood as a net fee plus the statutory value-added tax. In the absence of an agreement in individual cases, the Agency is entitled to a fee at the market rate for the services rendered and the granting of copyright and trademark usage rights.

9.3. All services of the Agency that are not expressly covered by the agreed fee will be remunerated separately. All cash disbursements incurred by the Agency must be reimbursed by the customer.

9.4. Estimates from the Agency 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 approved by the customer if the customer does not object in writing within seven working days of this notification and at the same time indicates more cost-effective alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun is deemed approved by the customer from the outset.

9.5. If the customer unilaterally changes or cancels commissioned work without involving the Agency – irrespective of ongoing other support by the Agency – he must remunerate the Agency for the services rendered up to that point according to the fee agreement and reimburse all incurred costs. If the cancellation is not based on grossly negligent or intentional breach of duty by the Agency, the customer must also reimburse the Agency for the entire fee (commission) agreed for this order, whereby the offsetting remuneration of § 1168 ABGB is excluded. Furthermore, the Agency must be held harmless and indemnified with regard to any third-party claims, in particular from contractors of the Agency. By paying the fee, the customer acquires no usage rights to work already performed; rather, unexecuted concepts, drafts and other documents must be returned to the Agency immediately.

9.6. Fees for framework agreements (so-called retainer agreements) are a certain maximum budget per month for a certain contingent of hours on average over a specific period.

10. Value Preservation Clause

10.1. The value stability of the claim plus ancillary claim is expressly agreed. The consumer price index 2020 (base year 2020) published monthly by Statistik Austria or an index replacing it serves as the measure for calculating value stability.

10.2. The index number calculated for January 2020 serves as the reference value for this contract. Fluctuations in the index number upwards or downwards up to and including 1.5% are disregarded. This margin must be recalculated each time it is exceeded upwards or downwards, whereby the first index number outside the currently applicable margin must always form the basis for both the re-determination of the claim amount and the calculation of the new margin. All rates of change are to be calculated to one decimal place.

11. Payments; Retention of Title

11.1. The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the onward billing of all cash disbursements and other expenses. The goods delivered by the Agency remain the property of the Agency until full payment of the remuneration, including all ancillary liabilities.

11.2. In the event of default in payment by the customer, the statutory default interest at the rate applicable to business transactions shall apply. Furthermore, in the event of default in payment, the customer undertakes to reimburse the Agency for the reminder and collection fees incurred, insofar as they are necessary for appropriate legal prosecution. This includes in any case the costs of two reminder letters amounting to at least €120.00 per reminder and a reminder letter from a lawyer commissioned with collection. The assertion of further rights and claims remains unaffected.

11.3. In the event of the customer’s default in payment, the Agency may immediately declare due all services and partial services rendered under other contracts concluded with the customer.

11.4. Furthermore, the Agency is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay remuneration remains unaffected.

11.5. If payment in installments has been agreed, the Agency reserves the right, in the event of non-timely payment of partial amounts or ancillary claims, to demand immediate payment of the entire outstanding debt (loss of term).

11.6. The customer is not entitled to offset his own claims against claims of the Agency, unless the customer’s claim has been acknowledged in writing by the Agency or legally established.

12. Ownership, Right of Use and Copyright

12.1. All services of the Agency, including development-related artifacts (code, raw photos, InDesign, Photoshop, Illustrator, etc.) and those from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), even individual parts thereof, remain the property of the Agency, as do the individual works and design originals, and can be reclaimed by the Agency at any time – especially upon termination of the contractual relationship.

12.2. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation of the Agency’s services always requires full payment of the fees invoiced by the Agency for this. If the customer uses the Agency’s services before this time, this use is based on a revocable loan relationship.

12.3. In the event of individual legal succession, the rights pass to the legal successor to the extent agreed upon by the customer and the Agency. An extension of privileges requires the Agency’s consent.

12.4. Changes and/or adaptations of the Agency’s services, in particular their further development by the customer or third parties acting for the customer, are only permissible with the express consent of the Agency and, insofar as services are protected by copyright, of the author. For this, the Agency and the author are entitled to a separate, appropriate fee.

12.5. No rights may be transferred or sold by the customer to third parties without the Agency’s consent and remuneration.

12.6. The use of the Agency’s services beyond the originally agreed purpose and scope of use requires the Agency’s consent, regardless of whether this service is protected by copyright or not. In return, the Agency and the author are entitled to a separate, appropriate fee.

12.7. The use of the Agency’s services and/or advertising materials for which the Agency has developed concepts or designs is subject to the Agency’s consent even after the expiry of the agency contract, regardless of whether the service is protected by copyright or not.

12.8. The customer is liable to the Agency for any unlawful use at twice the amount of the appropriate fee for such use.

12.9. Insofar as software products are provided to the customer by the Agency or the customer is enabled to use software products within the scope of the services, the customer has the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in an unchanged form.

12.10. When using software products in a network, a license is required for each concurrent user. When using software products on “stand-alone PCs”, a license is required for each PC.

12.11. For third-party software products provided to the customer by the Agency, the respective license terms of the manufacturer of these software products take precedence over the provisions of this point.

12.12. Unless a separate agreement is made, no further rights to software products are transferred to the customer. The customer’s rights under §§ 40(d), 40(e) UrhG are not affected hereby.

12.13. All documents provided to the customer by the Agency, in particular the documentation for software products, may neither be duplicated nor distributed in any way, whether for a fee or free of charge.

13. Self-Promotion; Copyright Notice

13.1. The Agency is entitled to use its work results or parts thereof for its own advertising purposes/as a reference free of charge, even beyond the term of the contract. Access to assets, insights or results is only granted for non-confidential and non-business-critical information. The customer must be asked for permission before publicly disclosing aspects of this project.
The Agency or, insofar as the services are protected by copyright, the author has the right to be named as the author; the Agency is entitled to discreetly place its company name or logo or another customary business designation on the customer’s advertising materials in consultation with the customer, if the Agency wishes to make use of this.

14. Non-Compete Clause

14.1. The customer undertakes not to commission another advertising agency/communication agency for services in the area during the term of this contract. However, in the event of termination of the contract, the customer is entitled to commission services from a new agency in the last two months of the notice period, if this is necessary to smoothly continue open projects after the termination of the contract.

14.2. The Agency may not pass on any assets, insights or results from this project to direct competitors of the customer, neither for a fee nor free of charge. This applies both during the project and for 12 months after the project is considered completed.

15. Warranty

15.1. The customer must report any defects immediately, in any case within ten days of delivery/service by the Agency, hidden defects within ten days of discovering them, in writing with a description of the defect; otherwise, the service is deemed approved. In this case, the assertion of warranty and damage claims as well as the right to contest due to error based on defects are excluded.

15.2. In the event of a justified and timely complaint of defects, the customer is entitled to the right to improvement or replacement of the delivery/service by the Agency. The Agency will remedy the defects within a reasonable period, whereby the customer enables the Agency to take all measures necessary for investigation and defect remedy. The Agency is entitled to refuse to improve the service if this is impossible or involves disproportionately high effort for the Agency. In this case, the customer is entitled to the statutory rights of rescission or reduction. In the event of improvement, it is the customer’s responsibility to carry out the transmission of the defective (physical) item at his own expense.

15.3. It is also the customer’s responsibility to check the service for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency is only obliged to conduct a rough check of legal admissibility. The Agency is not liable in the event of slight negligence or after fulfilling any duty to warn the customer for the legal admissibility of content if this was specified or approved by the customer.

15.4. The warranty period is six months from delivery/service. The right of recourse against the Agency according to § 933b para. 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 ABGB is excluded.

15.5. The Agency will timely inform the customer of any recognizable legal risks in connection with the content or design of planned advertising measures. If the Agency deems a legal (e.g., competition law) review by an expert necessary before implementing a measure, it will inform the customer thereof. If the Agency has expressed its concerns and the customer nevertheless insists on the implementation of the advertising measure, the Agency is not liable for any resulting disadvantages or risks. The customer shall indemnify the Agency against all third-party claims. Irrespective of this, the Agency is not liable for technical information about customer products included in advertising measures, nor for the copyright, design, trademark, or registration law protectability of ideas, concepts, designs, etc. supplied under this contract (see sections 10 and 13 GTC), unless protectability is expressly part of the contract.

16. Liability and Product Liability

16.1. In cases of slight negligence, the liability of the Agency and its auxiliary persons within the meaning of § 1313a ABGB (“people”) for property damage and financial losses of the customer is excluded, whether for indirect or direct damages, lost profits or consequential damages, damages from delay, impossibility, breach of duty, culpa in contrahendo or due to defective or incomplete performance. The injured party must prove gross negligence. Insofar as the Agency’s liability is excluded or limited, this also applies to the personal liability of its people.

16.2. Assets (image, text, models, etc.) transmitted by the customer to the Agency are used on the assumption that the customer is entitled to use them without infringing third-party rights.

16.3. The Agency’s liability for claims asserted against the customer based on services rendered by the Agency (e.g., advertising and promotional measures) is expressly excluded if the Agency has fulfilled its duty to inform or could not recognize such a duty even due to slight negligence. The Agency is not liable for legal costs, customer’s attorney fees, or costs of judgment publication or for any claims for damages or other third-party claims; the customer shall hold the Agency harmless and indemnify it in this regard.

16.4. Customer’s claims for damages expire three months after knowledge of the damage; in any case, however, after three years from the Agency’s act of infringement. Claims for damages are limited in amount to the net order value.

16.5. Liability for indirect damages – such as lost profits, costs associated with business interruption, data loss or third-party claims – is expressly excluded.

16.6. Insofar and as long as obligations cannot be fulfilled in due time or properly due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign interventions, power outages, failure of means of transport, failure of telecommunication networks or data lines, changes in laws affecting services after conclusion of the contract or other unavailability of products, this does not constitute a breach of contract.

17. Data Protection

17.1. The customer agrees that his personal data (name, profession, date of birth, company registration number, power of representation, contact person, business address and other addresses of the customer, telephone number, fax number, email address, bank details, credit card data, UID number) will be collected, stored and processed electronically for the purpose of contract fulfillment and customer support, as well as for the Agency’s own advertising and promotional purposes, for example by sending offers, advertising brochures or newsletters (in paper or electronic form), and for the purpose of referring to the ongoing or previous business relationship with the customer. The customer agrees to receive electronic mail for advertising purposes until further notice. This consent can be revoked at any time in writing by email, fax or letter to the contact details mentioned in the header of these GTC.

18. Applicable Law

The contract and all mutual rights and obligations derived therefrom, as well as claims between the Agency and the customer, are subject to Austrian substantive law, excluding its conflict of laws rules and excluding the UN Convention on Contracts for the International Sale of Goods.

19. Place of Performance and Jurisdiction

19.1. The place of performance is the Agency’s registered office. In the case of shipment, the risk passes to the customer as soon as the Agency has handed over the goods to the carrier chosen by it.

19.2. The court having subject-matter jurisdiction for the Agency’s registered office is agreed as the place of jurisdiction for all legal disputes arising between the Agency and the customer in connection with this contractual relationship. Notwithstanding this, the Agency is entitled to sue the customer at his general place of jurisdiction.

19.3. Insofar as designations referring to natural persons in this contract are only stated in the masculine form, they refer to women and men equally. When applying the designation to specific natural persons, the respective gender-specific form must be used.

Last updated: April 12, 2023

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