1.1 comm: consulting & services GmbH (hereinafter referred to as the “Agency”) shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). They shall apply to all legal relationships between the Agency and the Client, 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 apply. Deviations from these Terms and Conditions and other supplementary agreements with the Client shall only be effective if confirmed in writing by the Agency.
1.3 Any terms and conditions of the Client shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The Agency expressly rejects the Client’s general terms and conditions. No further objection by the Agency to the Client’s terms and conditions shall be required.
1.4 Amendments to the Terms and Conditions shall be notified to the Customer and shall be deemed to have been accepted if the Customer does not object to the amended Terms and Conditions in writing within 14 days; the Customer shall be expressly informed of the significance of silence and of the specific amended clauses in the notification. This presumption of consent does not apply to changes in the essential contents of the services and fees.
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.
1.6 The Agency’s quotations are subject to change and non-binding.

2. Social Media Channels
Prior to placing an order, the Agency expressly draws the Client’s attention to the fact that the providers of “social media channels” (e.g. Facebook, hereinafter referred to as “Providers”) reserve the right in their terms of use to refuse or remove advertisements and appearances for any reason. Providers are therefore not obliged to forward content and information to users. There is therefore a risk, which the Agency cannot calculate, that advertisements and appearances may be removed without reason. In the event of a complaint from another user, providers are given the opportunity to respond, but even in this case the content will be removed immediately. In this case, it may take some time to restore the original legal status. The agency works on the basis of the providers’ terms of use, over which it has no influence, and also bases the client’s order on them. By placing the order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The agency intends to carry out 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 simple possibility for any user to claim legal violations and thus achieve removal of the content, the agency cannot guarantee that the commissioned campaign will be available at all times.

3. protection of concepts and ideas
If the potential Client has already invited the Agency to develop a concept in advance and the Agency accepts this invitation prior to the conclusion of the main contract, the following provision shall apply:
3.1 The potential Client and the Agency shall enter into a contractual relationship (“Pitching Agreement”) as soon as the Agency accepts the invitation. This contract is also based on the GTC.
3.2 The potential Client acknowledges that the Agency already renders cost-intensive preliminary services in the development of the concept, although it has not yet assumed any performance obligations itself.
3.3 The concept is protected by copyright in its linguistic and graphic parts, insofar as these reach the level of a work. For copyright reasons alone, the potential client is not permitted to use or edit these parts without the Agency’s consent.
3.4 The concept also contains ideas relevant to advertising that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is produced later and thus as the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.
3.5 The potential client undertakes to refrain from commercially exploiting or having exploited or using or having used the creative advertising ideas presented by the agency as part of the concept outside the corrective of a main contract to be concluded at a later date.
3.6 If the potential Client is of the opinion that the Agency has presented him with ideas that he had already thought of before the presentation, he must inform the Agency of this by e-mail within 14 days of the date of the presentation, providing evidence that allows a time allocation.
3.7 In the opposite case, the parties shall assume that the Agency has presented a new idea to the potential client. If the idea is used by the Client, the Agency shall be deemed to have made a profit.
3.8 The potential client may be released from its obligations under this paragraph by paying reasonable compensation, to be calculated on a case-by-case basis, plus 20% VAT. The release shall not take effect until the Agency has received full payment of the compensation.

4 Scope of Services, Order Processing and Client’s Duty to Cooperate
4.1 The scope of the services to be provided is set out in the service description in the Agency Agreement or any order confirmation by the Agency, as well as any briefing minutes (“Offer Documents”). Subsequent changes to the scope of services require the written confirmation of the Agency. The Agency shall have freedom of design in the fulfilment of the order within the framework specified by the Client.
4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, colour prints and electronic files) must be checked by the Client and approved by the Client within three working days of receipt by the Client. If no response is received from the Client within this period, they shall be deemed to have been approved by the Client.
4.3 The Client shall provide the Agency with timely and complete access to all information and documents required for the performance of the work. The Client shall inform the Agency of all circumstances that are relevant to the execution of the work, even if they only become known during the execution of the work. The Client shall bear the costs incurred if the Agency has to repeat or delay work as a result of incorrect, incomplete or subsequently changed information provided by the Client.
4.4 The Client shall also be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, trade mark rights or other rights of third parties (rights clearance) and shall guarantee that the documents are free of third party rights and can therefore be used for the intended purpose. In the event of slight negligence or after fulfilling its duty to warn, the Agency shall not be liable – at least in its internal relationship with the Client – for any infringement of such third-party rights by the documents provided. If a claim is made against the Agency by a third party as a result of such an infringement of rights, the Client shall indemnify the Agency and hold it harmless; the Client shall reimburse the Agency for all losses incurred by the Agency as a result of a claim by a third party, in particular the costs of appropriate legal representation. The Client undertakes to support the Agency in the defence against any claims by third parties. The Client shall provide the Agency with all documents for this purpose without being requested to do so.

5 External Services / Commissioning of Third Parties
5.1 The Agency shall be entitled, at its discretion, to perform the work itself, to engage competent third parties as vicarious agents in the performance of the contractual work and/or to substitute such work (“Third Party Work”).
5.2 The use of third parties within the framework of a Third Party Service shall be carried out either in the Agency’s own name or in the name of the Client, the latter after prior notification of the Client. The Agency shall select such third party carefully and ensure that it has the necessary professional qualifications.
5.3 The Client shall assume obligations towards third parties named to the Client that extend beyond the term of the Agreement. This shall also expressly apply in the event of termination of the Agency Agreement for good cause.

6 Deadlines
6.1 Unless expressly agreed to be binding, any time of delivery or performance shall be approximate and non-binding. Binding time agreements must be recorded in writing or confirmed in writing by the Agency.
6.2 If the Agency’s delivery/service is delayed for reasons for which it is not responsible, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, the service obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last longer than two months, both the Client and the Agency shall be entitled to withdraw from the contract.
6.3 If the Agency is in default, the Client may only withdraw from the contract after he has granted the Agency a reasonable period of grace of at least 14 days in writing and this period has expired without result. Claims for damages by the Client due to non-fulfilment or delay are excluded, except in the case of proven intent or gross negligence.

7 Early termination
7.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
a) the provision of the service becomes impossible for reasons for which the Client is responsible or is further delayed despite a grace period of 14 days;
b) the customer continues to violate material obligations under this contract, such as payment of a due amount or obligations to cooperate, despite a written reminder with a 14-day grace period.
c) there is reasonable doubt as to the Client’s creditworthiness and the Client fails to make any advance payment or provide any suitable security at the Agency’s request prior to the Agency’s performance;
7.2 The Client shall be entitled to terminate the Agreement without notice for good cause. Good cause shall be deemed to exist, in particular, if the Agency continues to violate material provisions of this contract despite a written warning with a reasonable grace period of at least 30 days to remedy the breach of contract.
7.3 In the event of premature termination of the contract for reasons other than good cause, an advance fee of 60% of the agreed future contract volume shall be payable.

8 Fee
8.1 Unless otherwise agreed, the Agency shall be entitled to a fee for each individual service as soon as it has been provided. The Agency shall be entitled to demand advance payments to cover its expenses. In the case of orders that extend over a longer period of time, the Agency shall be entitled to issue interim or advance invoices or to request payments on account.
8.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, the Agency shall be entitled to a fee at the usual market rate for the services provided and the transfer of copyright and trademark rights of use.
8.3 All services provided by the Agency that are not expressly covered by the agreed fee shall be paid for separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
8.4 The Agency’s cost estimates are not binding. If it is foreseeable that the actual costs will exceed the Agency’s written estimate by more than 15%, the Agency shall inform the Client of the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three working days of such notification and at the same time announces less expensive alternatives. No separate notification is required for cost overruns of up to 15%. Such cost overrun shall be deemed to have been approved by the Client from the outset.
8.5 If the Client unilaterally changes or cancels an order without involving the Agency – irrespective of any other ongoing support provided by the Agency – the Client shall pay the Agency for the services provided up to that point in time in accordance with the fee agreement and reimburse all costs incurred. If the termination is not due to a grossly negligent or intentional breach of duty on the part of the Agency, the Client shall also reimburse the Agency for the entire fee (commission) agreed for this order, whereby the offsetting of remuneration pursuant to Section 1168 of the German Civil Code shall be excluded. Furthermore, the Agency shall be indemnified and held harmless from and against any and all claims by third parties, in particular the Agency’s contractors. Payment of the fee shall not entitle the Client to any rights of use in the work already performed; concepts, drafts and other documents that have not been executed shall be returned to the Agency without delay.

9 Payment, Retention of Title
9.1 The fee shall be payable immediately upon receipt of the invoice without deduction, unless special terms of payment have been agreed in writing in individual cases. This shall also apply to the invoicing of all cash outlays and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all ancillary obligations.
9.2 If the Client is in default of payment, interest on arrears shall be charged at the statutory rate applicable to commercial transactions. Furthermore, in the event of late payment, the Client undertakes to reimburse the Agency for any reminder and collection costs incurred, insofar as these are necessary for appropriate legal action. In any event, this shall include the costs of two reminders at the current market rate of at least €20.00 per reminder, as well as the costs of a reminder from a lawyer instructed to collect the debt. The assertion of further rights and claims remains unaffected.
9.3 In the event of default in payment by the Client, the Agency shall be entitled to demand immediate payment for all services and partial services provided under other agreements concluded with the Client.
9.4 Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration shall remain unaffected.
9.5 If payment in instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding amount if partial amounts or ancillary claims are not paid on time (default).
9.6 The Client is not entitled to set off its own claims against the Agency’s claims, unless the Client’s claim has been recognised by the Agency in writing or has been established by a court of law.

10 Proprietary rights and copyright
10.1 All services of the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), 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. Upon payment of the fee, the Client shall acquire the right of use for the agreed purpose. However, unless otherwise agreed, the Client may only use the Agency’s services in Austria. The acquisition of rights of use and the use of the Agency’s services shall in any case be subject to full payment of the fees invoiced by the Agency. If the Client uses the Agency’s services prior to this date, such use shall be on a loan basis, which may be revoked at any time.
10.2 Modifications or adaptations of the Agency’s services, in particular their further development by the Client or third parties working for the Client, shall only be permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author. The publication of all so-called “Open Files” is therefore expressly not part of the contract. The Agency is not obliged to hand them over. This means that the Client has no legal claim to the rights of use for “electronic works” without a contractual transfer.
10.3 The Agency’s consent shall be required for the use of the Agency’s services beyond the originally agreed purpose and scope of use, irrespective of whether these services are protected by copyright. The Agency and the author shall be entitled to separate and reasonable remuneration for this.
10.4 The Agency’s consent shall also be required for the use of the Agency’s services or advertising material for which the Agency has developed concept or design drafts after the expiration of the Agency agreement, regardless 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 for use in accordance with paragraph 4. In the 2nd or 3rd year after the end of the agreement, only half or a quarter of the fee agreed in the agreement. From the 4th year after the expiry of the agreement, no agency fee shall be payable.
10.6 The Principal shall be liable to the Agency for any unlawful use in the amount of double the appropriate fee for such use.

11 Labelling
11.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the author on all advertising material and in all advertising measures, without the Client being entitled to any remuneration for this.
11.2 Subject to written revocation by the Principal, which is possible at any time, the Agency shall be entitled to refer to the existing or previous business relationship with the Principal by name and company logo on its own advertising material and in particular on its website (reference).

12 Warranty
12.1 The Client must notify the Agency in writing of any defects without delay, and in any event within eight days of delivery/service, and of any hidden defects within eight days of their discovery, giving a description of the defect; otherwise any deviation in the service shall be deemed to have been approved. In this case, the assertion of warranty claims and claims for damages, as well as the right to dispute errors due to defects, shall be excluded.
12.2 In the event of justified and timely notification of defects, the Client shall be entitled to rectification or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the Client shall enable the Agency to take all necessary measures to investigate and remedy the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high costs for the Agency. In this case, the Client shall be entitled to the statutory rights of cancellation or reduction. In the event of rectification, the Client shall be responsible for the return of the defective (physical) item at its own expense.
12.3 It is also the Client’s responsibility to check the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. The Agency is only obliged to carry out a rough examination of the legal admissibility. In the event of slight negligence or after fulfilling a duty to warn the Client, the Agency shall not be liable for the legal admissibility of content if this has been specified or approved by the Client.
12.4 The warranty period is six months from delivery/service. The Client shall not be entitled to withhold payments due to defects. The presumption rule of § 924 AGBG is excluded.

13 Liability and Product Liability
13.1 In the event of slight negligence, the Agency and its employees, contractors or other vicarious agents (“People”) shall not be liable for any property damage or financial loss suffered by the Client, whether direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The injured party must prove the existence of gross negligence. Insofar as the liability of the Agency is excluded or limited, this shall also apply to the personal liability of its “people”.
13.2 Any liability on the part of the Agency for claims made against the Client on the basis of the services provided by the Agency (e.g. advertising) is expressly excluded if the Agency has fulfilled its duty to inform or if such a duty was not recognisable to it, whereby slight negligence shall not be deemed to be a disadvantage. In particular, the Agency shall not be liable for legal costs, the Client’s own legal costs or the costs of publication of judgments or for any claims for damages or other claims by third parties; the Client shall indemnify and hold the Agency harmless in this respect.
13.3 The Client’s claims for damages shall become statute-barred six months after knowledge of the damage, but in any case three years after the Agency’s act of infringement. Claims for damages shall be limited to the net value of the order.

14 Governing Law
The contract and all reciprocal rights and obligations and claims between the Agency and the Client arising therefrom shall be governed by Austrian substantive law, to the exclusion of its conflict of law rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

15 Place of Performance and Jurisdiction
15.1 The place of performance shall be the registered office of the Agency. In the event of shipment, the risk shall pass to the Client as soon as the Agency has handed over the goods to the carrier selected by it.
15.2 The place of jurisdiction shall be Vienna. For all legal disputes arising between the Agency and the Client in connection with this contractual relationship, the competent court for the registered office of the Agency shall be agreed. Notwithstanding this, the Agency shall be entitled to sue the Client at the latter’s general place of jurisdiction.
15.3 Insofar as this agreement refers to natural persons only in the masculine form, this shall apply equally to women and men. Where the term is used to refer to particular natural persons, the appropriate gender form shall be used.