HFMEDIA GmbH
Panoramaweg 4
4663 Laakirchen
office@hfmedia.at
Preface
Insofar as terms relating to natural persons are only given in masculine form in these terms and conditions, they refer to women and men in the same way. When applying the term to specific natural persons, the gender-specific form must be used.
Validity, conclusion of contract
1.1 HFMEDIA GmbH (hereinafter “agency”) provides its services exclusively on the basis of the following general terms and conditions (GTC). These apply to all legal relationships between the agency and the customer, even if they are not expressly referred to. The terms and conditions apply exclusively to legal relationships with entrepreneurs, i.e. B2B.
1.2 In each case, the version valid at the time of conclusion of the contract is decisive. Deviations from these and other supplementary agreements with the customer are only effective if confirmed in writing by the agency.
1.3 Any terms and conditions of the customer will not be accepted, even if they are aware of them, unless otherwise expressly agreed in writing in individual cases. The agency expressly disagrees with the customer's terms and conditions. There is no need for a further objection to the customer's terms and conditions by the agency.
1.4 Changes to the terms and conditions will be notified to the customer and will be considered agreed if the customer does not object to the amended terms and conditions in writing within 14 days; the customer is expressly informed of the significance of the silence and of the specifically amended clauses in the communication. This fiction of consent does not apply to changes in essential service content and fees.
1.5 Should individual provisions of these general terms and conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The invalid provision must be replaced by a valid provision that comes closest to the meaning and purpose.
1.6 The agency's offers are subject to change and non-binding.
Social media channels If the agency offers the customer, among other things, the establishment and support of communication for advertising purposes via social media platforms (e.g. meta, pinterest, netlog, LinkedIn, TikTok or twitter), the following special features must be considered:
2.1 Before placing an order, the agency expressly points out to the customer that the providers of “social media channels” (e.g. Facebook, hereinafter: provider) reserve the right in their terms of use to reject 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 that the agency cannot calculate that advertisements and appearances will be removed for no reason. In the event of a complaint from another user, the providers offer the option of a counter-notification, but even in this case, the content will be removed immediately. In this case, it may take some time to regain the original legal status. The agency intends to carry out the client's assignment to the best of its knowledge and belief and to comply with the guidelines of “social media channels.” However, due to the current terms of use and the easy ability of every user to claim infringements and thus obtain removal of the content, the agency cannot guarantee that the commissioned campaign is also available at any time.
2.2 The agency expressly points out to the customer that the functioning of social media platforms means that the rights of third parties, in particular copyrights, are infringed (for example, duplication of a photograph when setting a link). Due to the speed, the agency can neither monitor third-party content nor clarify the rights with regard to the content used by itself.
2.3 The agency works on the basis of the providers' terms of use and also bases these on the client's mandate. By placing an order, the customer expressly acknowledges that these terms of use (co-) determine the rights and obligations of any contractual relationship. However, the agency cannot guarantee compliance with the providers' terms of use due to the often baseless strictness and/or inconsistency.
Concept and idea protection If the potential customer has already invited the agency to create a concept in advance and the agency complies with this invitation before the main contract is concluded, the following rule applies: 3.1 As soon as the invitation and acceptance of the invitation by the agency, the potential customer and the agency enter into a contractual relationship (“pitching contract”). This contract is also based on the terms and conditions.
3.2 The potential customer acknowledges that the agency is already making cost-intensive advance payments when developing the concept, although he has not yet assumed any performance obligations himself.
3.3 The linguistic and graphical parts of the concept are subject to copyright protection, insofar as they reach the standard of work. Potential customers are not allowed to use and process these parts without the agency's consent simply on the basis of copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach any work height and are therefore not protected by copyright law. These ideas are at the beginning of every creative process and can be defined as a sparking spark for everything that comes up later and thus as the origin of marketing strategy. For this reason, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising material, etc. are regarded as an idea within the meaning of this agreement, even if they do not reach any work height.
3.5 The potential customer undertakes not to commercially exploit or have used or have used or used these creative advertising ideas presented by the agency as part of the concept outside the corrective of a main contract to be concluded later.
3.6 If the potential customer is of the opinion that the agency presented him with ideas which he had already come up with before the presentation, he must inform the agency within 14 days of the day of the presentation by e-mail, including evidence that allows time allocation.
3.7 In the opposite case, the contracting parties assume that the agency has presented the potential customer with a new idea for him. If the idea is used by the customer, it can be assumed that the agency was meritorious in the process.
3.8 The potential customer may exempt himself from his obligations under this point by payment of appropriate compensation, which is calculated on a case-by-case basis, plus 20% sales tax. The exemption only occurs after full payment of the compensation has been received by the Agency.
Scope of services, order processing and customer obligations to cooperate
4.1 The scope of the services to be provided is based on the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol (“offer documents”). Subsequent changes to the content of services require written confirmation from the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
4.2 All services provided by the agency (in particular all preliminary drafts, sketches, final drawings, brush prints, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by him within three working days of receipt by the customer. After this period has elapsed without feedback from the customer, they are considered to have been approved by the customer.
4.3 The customer will provide the agency with all information and documents required to provide the service in a timely and complete manner. He will inform them of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expenses arising from the fact that work must be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently amended information.
4.4 The customer is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyright, trademark, trademark or other rights of third parties (rights clearing) and guarantees that the documents are free from third-party rights and can therefore be used for the intended purpose. In the event of mere slight negligence or after fulfilment of its warning obligation — in any case internally with the customer — the agency is not liable for an infringement of such third-party rights through documents provided. If the agency is brought against by a third party due to such an infringement of rights, the customer shall indemnify the agency indemnify and indemnify it for all disadvantages it suffers as a result of a claim by third parties, in particular the costs of appropriate legal representation. The customer undertakes to assist the agency in defending against any claims made by third parties. The customer provides the agency with all documents for this purpose without being asked.
External services/hiring third parties
5.1 The agency is entitled, at its own discretion, to perform the service itself, to use competent third parties as vicarious agents when providing services subject to the contract and/or to substitute such services (“third-party service”).
5.2 The appointment of third parties as part of an external service is carried out either in the customer's own name or on behalf of the customer, the latter after prior information to the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
5.3 The customer must enter into obligations to third parties which have been made known to the customer and which extend beyond the contract period. This also applies expressly in the event of termination of the agency contract for good cause.
dates
6.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointments must be made 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 events and other unforeseeable events that cannot be avoided with reasonable means, the performance obligations are suspended for the duration and extent of the impediment and the deadlines are extended accordingly. If such delays last more than two months, the customer and the agency are entitled to withdraw from the contract.
6.3 If the agency is in default, the customer can only withdraw from the contract after he has given the agency a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.
Premature resolution
7.1 The agency is entitled to terminate the contract with immediate effect for important reasons. There is an important reason in particular if) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite setting a grace period of 14 days; b) the customer continues, despite a written warning with a grace period of 14 days, against essential obligations under this contract, such as payment of a due amount or obligations to cooperate, violates legitimate concerns regarding the customer's creditworthiness. and this, at the request of the agency, neither Advance payments provide appropriate security before the Agency makes payment;
7.2 The customer is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists in particular if the agency continues to violate essential provisions of this contract despite a written warning with a reasonable period of grace of at least 14 days to remedy the breach of contract.
Honorary
8.1 Unless otherwise agreed, the agency is entitled to fees for each individual service as soon as it has been provided. The agency is entitled to demand advances to cover its expenses. Starting with an order volume with an (annual) budget of €500 or those that extend over a longer period of time, the agency is entitled to prepare interim statements or advance invoices or to retrieve payments on account.
8.2 The fee is a net fee plus value added tax at the statutory rate. In the absence of agreement in individual cases, the agency is entitled to a fee in the usual market amount 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 will be paid separately. All cash expenses incurred by the agency must be reimbursed by the customer.
8.4 Cost estimates from the agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated by the agency in writing by more than 15%, the agency will inform the customer of the higher costs. The cost overrun is considered approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announces more cost-effective alternatives. If there is a cost overrun of up to 15%, no separate notification is required. This cost estimate overrun is considered approved by the client from the outset.
8.5 If the customer unilaterally changes or interrupts commissioned work without involving the agency — without prejudice to ongoing other support from the agency — he must reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a 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, excluding the offsetting in Section 1168 AGBG. Furthermore, the agency must be held indemnified and indemnified with regard to any claims made by third parties, in particular from the agency's contractors. By paying the fee, the customer does not acquire any rights of use for work already performed; concepts, drafts and other documents that have not been carried out must be returned to the agency immediately.
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 are agreed in writing in individual cases. This also applies to the further billing of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until full payment of the fee, including all ancillary liabilities.
9.2 If the customer defaults on payment, the statutory default interest applies at the rate applicable to entrepreneurial transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse the agency for the resulting reminder and collection expenses, insofar as they are necessary for appropriate legal action. In any case, this includes the costs of two letters of formal notice in the usual market amount of currently at least €45.00 per reminder and a reminder letter from a lawyer commissioned with collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of default in payment by the customer, the agency may immediately make all services and partial services provided within the framework of other contracts concluded with the customer due.
9.4 Furthermore, the agency is not obliged to provide further services until payment of the outstanding amount (right of withholding). The obligation to pay fees remains unaffected.
9.5 If payment has been agreed in installments, the agency reserves the right to demand immediate payment of the entire outstanding debt (loss of time) in the event of non-timely payment of partial amounts or ancillary claims.
9.6 The customer is not entitled to set off his own claims against claims made by the agency, unless the customer's claim has been acknowledged in writing by the agency or established in court.
9.7 Cancellation conditions: Unless otherwise agreed, the following cancellation conditions apply as agreed: 20% of the fee between 4 weeks and 1 week before the project/implementation date 80% of the fee from 1 week before the project/implementation date 100% of the fee in case of cancellation on the day of the agreed appointment, or in case of no-show
Ownership and copyright
10.1 All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts of them, remain the property of the agency as well as the individual workpieces and design originals and can be reclaimed by the agency at any time — in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. However, unless otherwise agreed, the customer may use the agency's services exclusively in Austria. In any case, the acquisition of rights to use and exploit services provided by the agency requires full payment of the fees charged by the agency for this purpose. If the customer uses the agency's services before this point in time, this use is based on a loan relationship that can be revoked at any time.
10.2 Changes or processing of agency services, such as in particular their development by the customer or by third parties working for him, are only permitted with the express consent of the agency and — insofar as the services are protected by copyright — of the author. The release of all so-called “open files” is therefore expressly not part of the contract. The agency is not obliged to surrender. This means that without a contractual assignment of rights of use even for “electronic work”, the client has no legal claim to them.
10.3 The agency's consent is required for the use of agency services that goes beyond the originally agreed purpose and scope of use — regardless of whether this service is protected by copyright. For this, the agency and the author are entitled to a separate appropriate remuneration.
10.4 After expiry of the agency contract, regardless of whether this service is protected by copyright or not, the agency's consent is also required for the use of agency services or advertising material for which the agency has developed conceptual or design templates.
10.5 For uses in accordance with paragraph 4, the agency is entitled to the full agency fee agreed in the expired contract in the first year after the end of the 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, there is no longer any agency fee to be paid.
10.6 The customer is liable to the agency for any illegal use in the amount of double the appropriate fee for this use.
10.7 The agency is unable to check for legal violations of content (photos, texts, logos, music) provided by the customer. It is the customer's responsibility to clear the rights for such content provided.
labeling
11.1 The agency is entitled to refer to the agency and possibly to the author on all advertising material and in all advertising measures, without the customer being entitled to any claim for payment.
11.2 Subject to written cancellation by the customer, which is possible at any time, the agency is entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).
11.3 If the agency is not tasked with creating a license plate (brand), the agency is not obliged to check the customer's license plate for any conflicts. If you order the creation of a license plate, the agency will only carry out a rough check. The obligation to carry out a rough check does not apply if the agency makes an express agreement with the customer about this.
11.4 The Agency is unable to carry out a rough examination for the entire EU area due to lack of resources and language skills. If there is an interest in an EU-wide search or an in-depth examination, the Agency recommends the involvement of a lawyer who must carry out a comprehensive similarity search based on legal aspects.
warrant
12.1 The customer must report any defects immediately, in any case within eight days of delivery/service by the agency, hidden defects within eight days after recognition of the same, in writing, with a description of the defect; otherwise, any deviation in performance is considered approved. In this case, the assertion of warranty and compensation claims as well as the right to challenge errors due to defects are excluded.
12.2 In the event of justified and timely notification of defects, the customer has the right to have the delivery/service improved or replaced by the agency. The agency will correct the deficiencies within a reasonable period of time, with the customer allowing the agency to take all necessary measures to investigate and rectify the defect. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of an improvement, it is the client's responsibility to transfer the defective (physical) item at his expense.
12.3 It is also the client's responsibility to check the performance for admissibility under law, in particular competition, trademark, copyright and administrative law. The agency is only required to make a rough check of the legal admissibility. In the event of slight negligence or after fulfilment of any warning obligation towards the customer, the agency is not liable for the legal admissibility of content if it has been specified or approved by the customer.
12.4 The warranty period is six months from delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption provision of Section 924 AGBG is excluded.
liability and
Product liability
13.1 In cases of slight negligence, liability of the agency and that of its employees, contractors or other vicarious agents (“people”) for material or financial damage suffered by the customer is excluded, regardless of whether it concerns direct or indirect damage, loss of profit or subsequent damage, damage due to delay, impossibility, positive breach of claim, fault upon conclusion of contract, due to defective or incomplete performance. The injured party must prove the existence of gross negligence. Insofar as the agency's liability is excluded or limited, this also applies to the personal liability of its “people.”
13.2 Any liability of the agency for claims made against the customer as a result of the service provided by the agency (e.g. advertising campaign) is expressly excluded if the agency has fulfilled its duty to provide information or was not aware of such a duty, although slight negligence does not hurt. In particular, the agency is not liable for legal costs, the customer's own attorneys' fees or costs of publishing judgments as well as for any claims for damages or other claims by third parties; the customer must indemnify and indemnify the agency in this regard.
13.3 Claims for damages by the customer expire six months from knowledge of the damage; but in any case after three years from the infringement by the agency. Compensation claims are limited in amount to the net order value.
Applicable law The contract and all reciprocal rights and obligations as well as claims between the agency and the customer are subject to Austrian substantive law to the exclusion of its referral standards and to the exclusion of the UN sales law.
Place of Fulfilment and Jurisdiction
15.1 The place of fulfilment is the seat of the agency. In the case of shipment, the risk is transferred to the customer as soon as the agency has handed over the goods to the transport company chosen by it.
15.2 The competent court for the seat of the agency 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 its general place of jurisdiction.
Risk warnings
16.1 If, before the start of the campaign, the agency specifically points out to the customer that a campaign entails a specific risk or could infringe the rights of third parties, and if the customer accepts this risk, it is considered agreed and it is assumed that the agency has fulfilled its contractual obligations.
Privacy statement in accordance with Articles 13 and 14 GDPR
17.1 We process your personal data, which falls under the following data categories: name/company, profession, date of birth, commercial register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, VAT number
17.2 You have provided us with data about yourself voluntarily and we process this data based on your consent for the following purposes:
Support for the customer and for own advertising purposes, for example to send offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or previous business relationship with the customer (reference note).
17.3 You can withdraw this consent at any time. As a result of a revocation, we will no longer process your data from this point on for the purposes mentioned above. For a revocation, please contact: office@hfmedia.at
17.4 The data you provide is also required to fulfill the contract or to carry out pre-contractual measures. Without this data, we cannot conclude the contract with you.
17.5 We will store your data until further notice. We use contract processors for this data processing. The appropriate level of protection results from an adequacy decision by the European Commission in accordance with Article 45 GDPR.
You can reach us using the following contact details:
office@hfmedia.at +43 650 270489517.6
Remedies notice In principle, you have the rights to information, correction, deletion, restriction, data portability and objection. Please contact us for this. If you believe that the processing of your data violates data protection law or that your data protection claims have otherwise been violated in any way, you can complain to the supervisory authority. In Austria, the
Data protection authority responsible.
aerial photography
18.1 If, during the production of aerial photographs, there is a circumstance which makes production in accordance with the contract impossible, the agency is responsible only for intent and gross negligence. The agency confirms that it meets the requirements for registration as a drone operator, including insurance requirements. This content is actually already in points 12.3 and 13.2
corroboration
By instructing the agency, the customer confirms that he has read the terms and conditions and that, in the event of this order placement, these rules form the basis of the contractual relationship.
