Terms and Conditions

of the

Typesetting and printing studio | Advertising agency

1. Scope of Application, Conclusion of Contract

1.1 The company "dersetzling e.U." 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 express reference is made to them. The GTC apply exclusively to legal relationships with business entities (B2B).

1.2 The version valid at the time the contract is concluded shall apply. Deviations from these terms, as well as any supplementary agreements with the client, are valid only if confirmed in writing by the agency.

1.3 Any terms and conditions of the client are not accepted—even if the agency is aware of them—unless otherwise expressly agreed in writing in an individual case. The agency expressly objects to the client's terms and conditions. No further objection to the client's terms and conditions by the agency is required.

1.4 Amendments to the GTC will be communicated to the client and shall be deemed agreed upon unless the client objects to the amended GTC in writing within 14 days; the notification will expressly draw the client's attention to the significance of silence and to the specific clauses being amended. This deemed acceptance does not apply to changes regarding essential service content or 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 or of contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes closest to the intended meaning and purpose.

1.6 The Agency’s offers are subject to change and non-binding.

2. Social Media

Channels Prior to the placement of an order, the Agency expressly informs the Client that the providers of "social media channels" (e.g., Facebook; hereinafter referred to as "Providers") reserve the right in their terms of use to reject or remove advertisements and promotional content for any reason. Consequently, the Providers are under no obligation to transmit content and information to users. There is therefore a risk—which the Agency cannot quantify—that advertisements and promotional content may be removed without cause. While Providers do allow for a counter-statement in the event of a complaint by another user, the content is nonetheless removed immediately. Restoring the original, lawful status may take considerable time in such cases. The Agency operates based on these Provider terms of use—over which it has no influence—and incorporates them into the Client's order. By placing the order, the Client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The Agency intends to execute the Client's order to the best of its knowledge and belief and to comply with the guidelines of "social media channels." However, given the currently applicable terms of use and the ease with which any user can allege legal violations to secure the removal of content, the Agency cannot guarantee that the commissioned campaign will remain accessible at all times.

3. Protection of Concepts and Ideas

Concepts and Ideas If the potential client has invited the agency to develop a concept, and the agency accepts this invitation prior to the conclusion of the main contract, the following provisions apply:

3.1 The potential client and the agency enter into a contractual relationship (a “pitching contract”) upon the issuance and acceptance of the invitation. These General Terms and Conditions also form the basis of this contract.

3.2 The potential client acknowledges that the agency provides costly preliminary services during the concept development phase, even though the client has not yet assumed any performance obligations.

3.3 The linguistic and graphic components of the concept are protected under copyright law, provided they meet the requisite level of originality. The potential client is prohibited from using or modifying these components without the agency’s consent, pursuant to copyright law.

3.4 Furthermore, the concept contains advertising-related ideas that do not meet the requisite level of originality and therefore do not enjoy copyright protection. These ideas mark the beginning of the creative process and can be defined as the spark that ignites all subsequent output—and thus as the origin of the marketing strategy. Consequently, protection extends to those elements of the concept that are distinctive and give the marketing strategy its characteristic nature. For the purposes of this agreement, “ideas” are understood to include, in particular, advertising slogans, ad copy, graphics, illustrations, advertising materials, etc., even if they do not meet the requisite level of originality.

3.5 The potential client undertakes to refrain from commercially exploiting—or having exploited—and from using—or having used—the creative advertising ideas presented by the agency within the scope of the concept, outside the framework of a main contract to be concluded at a later date.

3.6 If the potential client believes that the agency has presented ideas that the client had already conceived prior to the presentation, the client must notify the agency of this by e-mail within 14 days of the presentation date, citing evidence that allows for the ideas to be chronologically dated.

3.7 Failing such notification, the contracting parties shall proceed on the assumption that the agency presented an idea to the potential client that was new to them. If the client uses the idea, it shall be assumed that the agency’s contribution was instrumental in this regard.

3.8 The potential client may be released from their obligations under this clause by paying reasonable compensation—calculated on a case-by-case basis—plus 20% VAT. This release shall only take effect once the agency has received the compensation payment in full.

4. Scope of Services, Order Processing, and Customer’s Duty to Cooperate

4.1 The scope of the services to be provided is determined by the service description in the agency contract or any order confirmation issued by the agency, as well as any briefing minutes (collectively referred to as "Proposal Documents"). Subsequent changes to the scope of services require written confirmation from the agency. The agency has creative freedom in the execution of the order within the framework specified by the customer.

4.2 All services provided by the agency (in particular, all preliminary drafts, sketches, final artwork, proofs, blueprints, copies, color printouts, and electronic files) must be reviewed and approved by the customer within three business days of receipt. If this period elapses without a response from the customer, the services shall be deemed approved.

4.3 The customer shall provide the agency with timely and complete access to all information and documents required for the provision of the services. The customer shall inform the agency of all circumstances relevant to the execution of the order, even if such circumstances only become known during the course of the work. The customer shall bear any costs incurred if the agency is required to repeat or delay work due to information provided by the customer that is incorrect, incomplete, or subsequently modified.

4.4 The Client is further obliged to check any materials (photos, logos, etc.) provided for the execution of the order for potential copyright, trademark, or other third-party rights (rights clearance) and guarantees that said materials are free from third-party rights and may therefore be used for the intended purpose. The Agency shall not be liable—at least in the internal relationship with the Client—for any infringement of such third-party rights resulting from provided materials, provided the Agency acted with only ordinary negligence or fulfilled its duty to warn. Should a third party assert claims against the Agency due to such an infringement, the Client shall indemnify and hold the Agency harmless; the Client shall compensate the Agency for all losses arising from such third-party claims, including, in particular, the costs of appropriate legal representation. The Client undertakes to assist the Agency in defending against any such third-party claims and shall, for this purpose, provide the Agency with all relevant documentation without being specifically requested to do so.

5. External Services / Commissioning of Third Parties

5.1 The Agency is entitled, at its sole discretion, to perform the service itself, to engage qualified third parties as agents to perform the services covered by the contract, and/or to substitute such services (“third-party services”).

5.2 Third parties engaged for third-party services are commissioned either in the Agency’s own name or in the name of the Client; in the latter case, the Client must be informed in advance. The Agency shall select such third parties with due care and ensure that they possess the necessary professional qualifications.

5.3 The Client shall assume obligations towards third parties—provided such third parties have been identified to the Client—that extend beyond the term of the contract. This applies expressly even in the event of termination of the agency contract for good cause.

6. Deadlines

6.1 Unless expressly agreed as binding, any specified delivery periods or performance deadlines are merely approximate and non-binding. Binding agreements regarding deadlines must be recorded in writing or confirmed in writing by the Agency.

6.2 If the Agency’s delivery or performance is delayed due to reasons beyond its control—such as events of force majeure or other unforeseeable events that cannot be averted by reasonable means—performance obligations shall be suspended for the duration and to the extent of the impediment, and deadlines shall be extended accordingly. Should such delays persist for more than two months, both the Client and the Agency shall be entitled to withdraw from the contract.

6.3 In the event of a delay in performance by the Agency, the Client may withdraw from the contract only after having set a reasonable grace period of at least 14 days in writing and after said period has expired without result. Claims for damages by the Client due to non-performance or delay are excluded, except in cases involving proven willful misconduct or gross negligence.

7. Early Termination

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

a) performance of the service becomes impossible for reasons attributable to the Client, or continues to be delayed despite the setting of a 14-day grace period;

b) the Client repeatedly breaches material obligations under this contract—such as the payment of an amount due or cooperation obligations—despite receiving a written warning and a 14-day grace period;

c) there are legitimate concerns regarding the Client’s creditworthiness and, upon the Agency’s request, the Client fails to make advance payments or provide adequate security prior to the Agency’s performance;

7.2 The Client is entitled to terminate the contract for good cause without setting a grace period. Good cause exists, in particular, if the Agency repeatedly breaches material provisions of this contract—despite receiving a written warning and a reasonable grace period of at least 14 days to remedy the breach.

8. Fees

8.1 Unless otherwise agreed, the Agency’s entitlement to a fee for each individual service arises as soon as that service has been rendered. The Agency is entitled to demand advance payments to cover its expenses. For orders with a (yearly) budget of €10,000 or more, or for orders extending over a longer period, the Agency is entitled to issue interim invoices or advance invoices, or to call for payments on account.

8.2 The fee is understood as a net fee plus statutory VAT. In the absence of a specific agreement, the Agency is entitled to a fee at the customary market rate for the services rendered and the granting of usage rights under copyright and trademark law.

8.3 All services provided by the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All out-of-pocket expenses incurred by the Agency must be reimbursed by the Client. 8.4 Cost estimates provided by the Agency are non-binding. If it becomes apparent that actual costs will exceed the costs estimated in writing by the Agency by more than 15%, the Agency shall notify the Client of the higher costs. The cost overrun shall be deemed approved by the Client unless the Client objects in writing within three working days of such notification and simultaneously proposes more cost-effective alternatives. Separate notification is not required for cost overruns of up to 15%; such overruns of the cost estimate are deemed approved by the Client from the outset.

8.5 If the customer unilaterally alters or cancels commissioned work without involving the agency—without prejudice to any ongoing services otherwise provided by the agency—the customer must compensate the agency for services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the cancellation is due to a grossly negligent or intentional breach of duty by the agency, the customer must additionally pay the agency the entire fee (commission) agreed upon for the assignment; the provision for offsetting remuneration under Section 1168 of the Austrian Civil Code (ABGB) is excluded. Furthermore, the agency must be indemnified and held harmless against any claims by third parties, particularly the agency’s own contractors. Payment of the remuneration does not grant the customer any rights of use regarding work already performed; rather, unexecuted concepts, drafts, and other documents must be returned to the agency without delay.

9. Payment, Retention of Title

9.1 The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed upon in writing for a specific case. This also applies to the recharging of all out-of-pocket expenses and other costs. Goods supplied by the Agency remain the property of the Agency until full payment of the remuneration, including all ancillary obligations, has been made.

9.2 In the event of late payment by the Customer, statutory default interest at the rate applicable to business-to-business transactions shall apply. Furthermore, in the event of late payment, the Customer undertakes to reimburse the Agency for any resulting dunning and collection costs, insofar as these are necessary for appropriate legal enforcement. This includes, in any case, the costs of two dunning letters at standard market rates—currently at least €20.00 per reminder—as well as a dunning letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.

9.3 In the event of late payment by the Customer, the Agency may declare all services and partial services rendered under other contracts concluded with the Customer to be due for immediate payment.

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

9.5 If payment in installments has been agreed upon, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (acceleration of payment/loss of installment privilege).

9.6 The Customer is not entitled to offset its own claims against claims of the Agency, unless the Customer’s claim has been acknowledged in writing by the Agency or established by a court.

10. Property Rights and Copyright

10.1 All services provided by the Agency, including those resulting from presentations (e.g., suggestions, ideas, sketches, preliminary designs, rough drafts, final artwork, concepts, negatives, slides)—as well as individual parts thereof, specific workpieces, and original designs—remain the property of the Agency and may be reclaimed by the Agency at any time, particularly upon termination of the contractual relationship. By paying the fee, the Client acquires the right to use the services for the agreed purpose. Unless otherwise agreed, however, the Client may use the Agency’s services exclusively within Austria. The acquisition of rights of use and exploitation regarding the Agency’s services is in all cases contingent upon full payment of the fees invoiced by the Agency for such services. If the Client uses the Agency’s services prior to such payment, said use is based on a loan arrangement that is revocable at any time.

10.2 Modifications or adaptations of the Agency’s services—specifically including further development by the Client or by third parties acting on the Client’s behalf—are permitted only with the express consent of the Agency and, insofar as the services are protected by copyright, the author. Consequently, the release of so-called "open files" is expressly excluded from the scope of the contract. The Agency is under no obligation to release them; that is, absent a contractual assignment of usage rights covering "electronic works" as well, the Client has no legal claim to them.

10.3 Use of the Agency’s services that extends beyond the originally agreed purpose and scope of use requires the Agency’s consent, regardless of whether the service in question is protected by copyright. The Agency and the author are entitled to separate, reasonable remuneration for such use.

10.4 The Agency’s consent is also required for the use of the Agency’s services—or of advertising materials for which the Agency has developed conceptual or design templates—following the expiration of the agency contract, regardless of whether or not such services are protected by copyright.

10.5 For uses pursuant to Section 10.4, the Agency is entitled to the full agency fee agreed upon in the expired contract during the first year following the contract's termination. In the second and third years following the contract's expiration, the Agency is entitled to only half and one-quarter, respectively, of the fee agreed upon in the contract. No agency fee is payable from the fourth year onwards.

10.6 The Client is liable to the Agency for any unauthorized use in an amount equal to twice the fee appropriate for such use.

11. Attribution

11.1 The Agency is entitled to identify itself—and, where applicable, the creator—on all advertising materials and in all advertising activities, without the Client being entitled to any remuneration for this.

11.2 Subject to the Client’s right to revoke this permission in writing at any time, the Agency is entitled to refer to the existing or former business relationship with the Client—using the Client’s name and company logo—on its own advertising media and, in particular, on its website (reference).

12. Warranty

12.1 The customer must notify the Agency in writing of any defects immediately—and in any event within eight days of delivery/performance by the Agency—or, in the case of hidden defects, within eight days of their discovery, providing a description of the defect; otherwise, any deviation in performance shall be deemed approved. In such a case, the assertion of warranty claims and claims for damages, as well as the right to challenge the contract on grounds of error due to defects, are excluded.

12.2 In the event of a justified and timely notice of defect, the customer is entitled to have the Agency rectify or replace the delivery/performance. The Agency shall remedy the defects within a reasonable period, with the customer facilitating all measures necessary for the Agency to inspect and rectify the defects. The Agency is entitled to refuse rectification of the performance if it is impossible or entails disproportionately high effort for the Agency. In such a case, the customer is entitled to statutory rights of rescission or price reduction. In the event of rectification, the client is responsible for arranging the transport of the defective (tangible) item at their own expense.

12.3 It is also the client's responsibility to verify the legal admissibility of the performance, particularly regarding competition, trademark, copyright, and administrative law. The Agency is obliged only to conduct a preliminary check of legal admissibility. The Agency shall not be liable for the legal admissibility of content—in cases of slight negligence or after fulfilling any duty to warn the customer—if such content was specified or approved by the customer.

12.4 The warranty period is six months from the date of delivery/performance. The customer is not entitled to withhold payments due to defects. The presumption rule set forth in Section 924 of the Austrian General Civil Code (ABGB) is excluded.

13. Liability and Product Liability

13.1 In cases of slight negligence, liability on the part of the Agency and its employees, contractors, or other agents ("Personnel") for property damage or financial loss suffered by the Client is excluded, regardless of whether such damage is direct or indirect, involves lost profits, consequential damages, or damages arising from delay, impossibility of performance, positive breach of contract, fault at the time of contract conclusion, or defective or incomplete performance. The injured party bears the burden of proving gross negligence. Where the Agency’s liability is excluded or limited, this also applies to the personal liability of its "Personnel."

13.2 Any liability of the Agency for claims asserted against the Client based on services provided by the Agency (e.g., advertising measures) is expressly excluded if the Agency has fulfilled its duty to advise or if the relevant issue was not apparent to it (with slight negligence not being prejudicial in this regard). In particular, the Agency is not liable for litigation costs, the Client’s own legal fees, costs associated with the publication of judgments, or any claims for damages or other demands made by third parties; the Client shall indemnify and hold the Agency harmless in this respect.

13.3 Claims for damages by the Client expire six months after the Client becomes aware of the damage, and in any event three years after the act causing the damage committed by the Agency. Claims for damages are limited in amount to the net order value.

14. Applicable Law

The contract and all mutual rights, obligations, and claims arising therefrom between the Agency and the Client shall be governed by Austrian substantive law, excluding its conflict-of-law rules and the UN Sales Convention (CISG).

15. Place of Performance and Place of Jurisdiction

15.1 The place of performance shall be the Agency’s registered office. In the event of shipment, the risk passes to the Client as soon as the Agency has handed over the goods to the carrier selected by it.

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

15.3 Where terms referring to natural persons are used in the masculine form in this contract, they apply equally to women and men. When applying such terms to specific natural persons, the respective gender-specific form must be used.