1.1 Brandenstein Communications - hereinafter referred to as the Agency - provides its services exclusively on the basis of these General Terms and Conditions. These shall also apply to all future business relations, even if no express reference is made to them.
1.2 Subsidiary agreements, reservations, amendments or supplements to these General Terms and Conditions of Business must be in writing in order to be valid; this also applies to any deviation from the written form requirement.
1.3 Any terms and conditions of the Contractual Partner that conflict with or deviate from these Terms and Conditions shall only become effective, even if they are known, if they are expressly recognised by the Agency in writing.
1.4 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 its meaning and purpose.
2.1 The basis for the conclusion of the contract is the respective offer of the Agency or the order of the Client, in which the scope of services and the remuneration are set out. The Agency's offers are subject to change and non-binding.
2.2 If the Client places an order, he shall be bound by it for a fortnight from its receipt by the Agency. The contract shall be concluded by the Agency's acceptance of the order. Acceptance shall be in writing (e.g. by order confirmation), unless the Agency indicates beyond doubt (e.g. by taking action on the basis of the order) that it accepts the order.
2.3 By entering into the contract, the client accepts the obligation to comply with the PRVA Code of Ethics by both contracting parties.
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 content of the service must be made in writing.
3.2 All services provided by the Agency shall be checked by the Client and released within three days. If they are not released in time, they shall be deemed to have been approved by the Client.
3.3 The Client shall immediately provide the Agency with all information and documents required for the performance of the service. He shall inform the Agency of all events that are of importance for the execution of the order, even if these circumstances only become known during the execution of the order. The customer shall bear the expense incurred by the fact that work has to be repeated or is delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
3.4 The customer is furthermore 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 infringement of such rights. If a claim is made against the agency due to such an infringement of rights, the customer shall indemnify and hold the agency harmless; the customer shall compensate the agency for all disadvantages incurred by the agency due to a third party claim.
4.1 The Agency shall be entitled, at its own discretion, to perform the service itself, to use third parties for the performance of services that are the subject matter of the contract and/or to substitute such services ("procurer").
4.2 The commissioning of agents shall take place either in the client's own name or in the name of the client, but in any case for the account of the client.
4.3 The Agency shall carefully select agents and ensure that they have the necessary professional qualifications.
5.1 Agreements on deadlines and dates shall be recorded or confirmed in writing. The Agency shall endeavour to meet the agreed deadlines. However, failure to meet the deadlines shall only entitle the Customer to assert the rights to which he is entitled by law if he has granted the Agency a reasonable period of grace of at least 14 days. This period shall commence with the receipt of a reminder by the Agency.
5.2 After the fruitless expiry of the grace period, the customer may withdraw from the contract. An obligation to pay damages on the grounds of default shall only exist in the event of intent or gross negligence on the part of the Agency.
5.3 Unavoidable or unforeseeable events - in particular delays on the part of the Agency's contractors - shall in any case release the Agency from compliance with the agreed delivery date. The same shall apply if the Client is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information). In this case, the agreed date shall be postponed at least to the extent of the delay.
The Agency shall in particular be entitled to withdraw from the contract if
6.1. 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;
6.2. there are justified concerns about the Customer's creditworthiness and the Customer fails to make advance payments at the Agency's request or to provide suitable security prior to the Agency's performance.
6.3. the client makes demands that contradict the PRVA's code of honour or legal requirements (media law, copyright law, competition law, etc.).
7.1 Unless otherwise agreed, the Agency's fee claim shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses.
7.2 All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
Only the catering for the staff involved in the shootings and the necessary decoration materials will be provided by the agency by arrangement.
7.3 The Agency's cost estimates shall not be binding as a matter of principle. If it is foreseeable that the actual costs will exceed the Agency's written estimate by more than % 10, the Agency shall inform the Client of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three days of this notification and at the same time informs the agency of less expensive alternatives.
7.4 The Agency shall be entitled to appropriate remuneration for all work by the Agency that is not carried out by the Client for whatever reason. Upon payment of this remuneration, the Client shall not acquire any rights to such work; rather, concepts, drafts and other documents that have not been executed shall be returned to the Agency without delay.
8.1 The Agency's invoices shall be due net cash without any deductions from the date of the invoice and shall be paid within ten calendar days of receipt of the invoice, unless otherwise agreed. In the event of late payment, interest on arrears shall be deemed to have been agreed at a rate of 10 % above the respective discount rate of the Austrian National Bank. Delivered goods shall remain the property of the Agency until payment has been made in full.
8.2 The customer undertakes to bear all costs and expenses associated with the collection of the claim, such as, in particular, collection charges or other costs necessary for an appropriate legal prosecution.
8.3 In the event of default in payment on the part of the Client, the Agency shall be entitled to demand immediate payment for all services and partial services rendered under other contracts concluded with the Client.
8.4 The Customer shall not be entitled to set off its own claims against claims of the Agency unless the Customer's claim has been recognised by the Agency in writing or established by a court of law. A right of retention on the part of the Client shall be excluded.
9.1 The Agency shall be entitled to an appropriate fee for participation in presentations which, in the absence of an agreement, shall at least cover the Agency's entire personnel and material expenses for the presentation as well as the costs of all external services.
9.2 If the Agency does not receive an order after the presentation, all services provided by the Agency, in particular the presentation documents and their content, shall remain the property of the Agency; the Client shall not be entitled to use them further - in whatever form; the documents shall rather be returned to the Agency without delay. The transfer of presentation documents to third parties as well as their publication, duplication, dissemination or other utilisation shall not be permitted without the express consent of the Agency.
9.3 The client is also prohibited from further use of the ideas and concepts introduced in the course of the presentation, irrespective of whether the ideas and concepts obtain copyright protection. Upon payment of the presentation fee, the client shall not acquire any exploitation or usage rights to the services presented.
9.4 If the ideas and concepts contributed in the course of a presentation for the solution of communication tasks are not utilised in measures designed by the Agency, the Agency shall be entitled to use the ideas and concepts presented elsewhere.
10.1 All services provided by the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, concepts, digital data), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time - in particular upon termination of the contractual relationship. By paying the fee, the client shall only acquire the right of use (including reproduction) for the agreed purpose and to the agreed extent of use. In the absence of an agreement to the contrary 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 rights of use and exploitation of the Agency's services shall in any case require full payment of the fees invoiced by the Agency for such services.
10.2 Changes to the Agency's services, such as in particular their further development by the Customer or by third parties acting on the Customer's behalf, shall only be permissible with the express consent of the Agency and - insofar as the services are protected by copyright - of the author.
10.3 The Agency's consent shall be required for the use of the Agency's services that goes beyond the originally agreed purpose and scope of use, irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for this.
10.4 The Agency's consent shall also be required for the use of the Agency's services or ideas for measures for which the Agency has developed conceptual or design templates after expiry of the Agency Contract, irrespective of whether this service is protected by copyright or not.
10.5 In the first year after the end of the contract, the Agency shall be entitled to the full agency fee agreed in the expired contract. In the 2nd or 3rd year after expiry 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 more agency remuneration is payable.
Subject to the written revocation of the Customer, which is possible at any time, the Agency shall be entitled to refer to the existing business relationship with the Customer by name and company logo on its own advertising media and in particular on its Internet website.
12.1 The Customer shall assert and substantiate any complaints in writing without delay, but in any case within three days of performance by the Agency. In the event of justified and timely complaints, the Customer shall only have the right to improvement or replacement of the service by the Agency.
12.2 In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Agency to take all measures necessary to investigate and remedy the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for the Agency.
12.3 The reversal of the burden of proof in accordance with § 924 ABGB at the expense of the Agency shall be excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect shall be proven by the Client.
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 harm caused by a defect or due to unlawful acts shall be excluded, unless they are based on intent or gross negligence on the part of the Agency.
12.5 Any claim for damages may only be asserted within six months of knowledge of the damage.
12.6 Claims for damages are limited to the amount of the order value excluding taxes.
13.1 The Agency shall carry out the work assigned to it in compliance with the generally recognised principles of law and shall point out to the Client in good time any risks recognisable to it. Any liability of the Agency for claims made against the Client on the basis of the measure shall be expressly excluded if the Agency has fulfilled its duty to inform; in particular, the Agency shall not be liable for legal costs, the Client's own legal fees or costs of judgment publications as well as for any claims for damages or similar claims by third parties.
13.2 The Agency shall only be liable for damages within the framework of the statutory provisions if it can be proven to have acted with intent or gross negligence. Liability for slight negligence is excluded. The existence of gross negligence shall be proven by the injured party.
The legal relationship between the Customer and the Agency shall be governed exclusively by Austrian law, to the exclusion of the international conflict of law rules.
15.1 The place of performance shall be the registered office of the Agency.
15.2 The place of jurisdiction for all disputes arising directly between the Agency and the Customer shall be the Austrian court with local and subject-matter jurisdiction for the Agency's registered office.