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Doris Fischer - DoAndTell, Agency, Waidhausenstrasse 41/9, 1140 Vienna 
created according to the WKO service version 02/2021
 
1.     Validity, conclusion of contract
1.1   The Doris Fischer -  DoAndTell (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 no express reference is made to them. The terms and conditions are only applicable to legal relationships with entrepreneurs, i.e. B2B.
1.2   The version valid at the time of the conclusion of the contract is decisive. Deviations from these 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 they are known, are not accepted, unless otherwise expressly agreed in writing in individual cases. The agency expressly rejects the customer's terms and conditions. The agency does not need to make a further contradiction to the customer's terms and conditions.
1.4   Changes to the General Terms and Conditions will be announced to the customer and shall be deemed to have been agreed if the customer does not object to the changed General Terms and Conditions in writing within 14 days; The customer is expressly informed in the notification of the importance of silence and of the specifically changed clauses. This fictitious consent does not apply to changes to 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 ineffective provision is to be replaced by an effective one that comes closest to the meaning and purpose.
1.6   The agency's offers are subject to change and non-binding.
 
2.     Social media channels
     Before placing the order, the agency expressly advises the customer that the providers of "social media channels" (e.g. Facebook, hereinafter referred to as providers) reserve the right to reject or remove advertisements and appearances for any reason in their terms of use . The providers are therefore not obliged to forward content and information to the users. There is therefore the risk, which 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 give the option of counter-notification, but in this case, too, the content is removed immediately. In this case, the recovery of the original, lawful state may take some time or it may not be restored. 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. 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 client's order to the best of its knowledge and belief and to adhere to the guidelines of "social media channels" as well as possible. Due to the currently valid terms of use and the simple possibility for every user to claim legal violations and thus to have the content removed, the agency cannot guarantee that the commissioned campaign can be accessed at any time or that the site or associated services are not blocked .
 
3.     Concept and idea protection
If the potential customer has already invited the agency in advance to create a concept and the agency complies with this invitation before the main contract is concluded, the following rule applies:
3.1   The potential customer and the agency already enter into a contractual relationship (“pitching contract”) through the invitation and the acceptance of the invitation by the agency. This contract is also based on the terms and conditions. 
3.2   The potential customer acknowledges that the agency is already providing cost-intensive preliminary work with the concept development, although he has not yet assumed any performance obligations himself. 
3.3   The concept is subject to the protection of the copyright law in its linguistic and graphic parts, as far as this work height is reached. A use and processing of these parts without the consent of the agency is not permitted to the potential customer due to the copyright law.
3.4   The concept also contains advertising-relevant ideas that do not reach the height of the 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 a spark of everything that comes up later and thus as the origin of marketing strategy. That is why those elements of the concept are protected that are peculiar and give the marketing strategy its characteristic character. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are regarded as ideas within the meaning of this agreement, even if they are not as high as possible.
3.5   The potential customer undertakes to refrain from economically exploiting these creative advertising ideas presented by the agency as part of the concept outside of the corrective of a main contract to be concluded later, or having them exploited or used.
3.6   If the potential customer is of the opinion that the agency has presented ideas to him that he had already come up with before the presentation, he must inform the agency within 14 days of the day of the presentation by email, citing evidence, which allow a time allocation to be announced. 
3.7   In the opposite case, the contracting parties assume that the agency has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the agency was meritorious.  
3.8   The potential customer can exempt himself from his obligations under this point by paying appropriate compensation (plus 20% sales tax, if applicable). The exemption does not apply until the agency has received full payment of the compensation. 
 
4th     Scope of services, order processing and the customer's obligation to cooperate
4.1   The scope of the services to be provided results from 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 service content require written confirmation by the agency. Within the framework specified by the customer, the agency has freedom of design when fulfilling the order.
4.2   All services of the agency (in particular all preliminary drafts, sketches, final drawings, brush prints, blueprints, copies, color prints and electronic files) are to 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 deemed to have been approved by the customer. 
4.3   The customer will make all information and documents available to the agency in a timely and complete manner that are necessary for the provision of the service. He will inform you 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 expense that arises from the fact that work has to be repeated or delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
4.4   The customer is also obliged to check the documents (photos, logos, etc.) made available for the execution of the order for any copyrights, trademarks, trademarks or other rights of third parties (rights clearing) and guarantees that the documents are free of rights Are third parties and can therefore be used for the intended purpose. The agency is liable in the case of simple negligence or after fulfilling its warning obligation - at least in the internal relationship with the customer - not due to a violation of such third party rights through the documents provided. If the agency is called upon by a third party due to such a violation of the law, the customer shall hold the agency harmless and harmless; he has to reimburse her for all disadvantages that she incurs as a result of third-party claims, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in defending against any claims by third parties. For this purpose, the customer provides the agency with all documents without being requested to do so.
 
5.     External services / commissioning third parties
5.1   The agency is entitled at its own discretion to carry out the service itself, to use competent third parties as vicarious agents for the provision of contractual services and / or to substitute such services ("external service").
5.2   The commissioning of third parties in the context of a third-party service takes place either in the customer's own name or in the name of the customer, the latter after prior notification to the customer. The agency will carefully select this third party and ensure that it has the necessary professional qualifications.
5.3   The customer has to enter into obligations towards third parties that have been made known to the customer and that go beyond the term of the contract. This also applies expressly in the event that the agency contract is terminated for an important reason.
 
6th     Events
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 delivery / service of the agency is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be prevented by reasonable means, the performance obligations are suspended for the duration and to the extent of the hindrance and the deadlines are extended corresponding. 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 giving 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 evidence of intent or gross negligence.
 
7th     Early termination
7.1   The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
a)     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, violates essential obligations from this contract, such as payment of an amount due or obligations to cooperate.
c)     there are justified concerns about the creditworthiness of the customer and the customer neither makes advance payments at the request of the agency nor provides suitable security prior to the agency's performance;
7.2   The customer is entitled to dissolve 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 grace period of at least 14 days to remedy the breach of contract.


8th.     fee
8.1   Unless otherwise agreed, the agency is entitled to a fee for each individual service as soon as it has been performed. The agency is entitled to request advances to cover its expenses. From an order volume with an (annual) budget of € 5000 or those that extend over a longer period of time, the agency is entitled to create interim invoices or advance invoices or to call up payments on account.
8.2   The fee is a net fee if it is subject to sales tax, plus sales tax at the statutory rate. In the absence of an agreement in individual cases, the agency is entitled to a fee in the amount customary in the market for the services provided and the transfer of the rights of use under copyright and trademark law.
8.3   All agency services that are not expressly covered by the agreed fee will be remunerated separately. All cash expenses incurred by the agency are to be reimbursed by the customer.
8.4   The agency's cost estimates 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 to have been approved by the customer if the customer does not object in writing within three working days of this notification and at the same time announces cheaper alternatives. If the costs are exceeded by up to 15%, separate notification is not required. This overrun of the cost estimate is deemed to have been approved by the client from the outset.
8.5   If the customer unilaterally changes or interrupts work commissioned without the agency's involvement - regardless of the ongoing other support provided by them - he has to reimburse the agency for the services provided up to that point in accordance with the fee agreement and reimburse all costs incurred. If the termination is not justified by a grossly negligent or willful breach of duty on the part of the agency, the customer must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the crediting of § 1168 AGBG is excluded. Furthermore, the agency is to be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of the agency. By paying the fee, the customer does not acquire any rights of use for work that has already been performed; Concepts, drafts and other documents that have not been implemented are to be returned to the agency immediately.
 
9.     Payment, retention of title
9.1   The fee is due for payment immediately upon receipt of the invoice and without any deductions, unless special terms of payment have been agreed in writing in individual cases. This also applies to the charging of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until the fee has been paid in full, including all ancillary liabilities.
9.2   In the event of default in payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the agency for the reminder and collection costs incurred, insofar as they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters in the customary market amount of currently at least € 20.00 per reminder as well as one reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected. 
9.3   In the event of default in payment by the customer, the agency can immediately make all services and partial services due within the framework of other contracts concluded with the customer. 
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 remuneration remains unaffected. 
9.5   If payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or additional claims (loss of deadline).
9.6   The customer is not entitled to offset his own claims against claims of the agency, unless the customer's claim has been recognized by the agency in writing or has been determined by a court. 
 
10.   Property Law and Copyright
10.1  All services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and draft originals, remain the property of the agency and can be used by reclaimed from the agency at any time - especially when the contractual relationship is terminated. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, the customer may only use the agency's services in Austria. The acquisition of usage and exploitation rights to the agency's services always requires full payment of the fees charged by the agency. 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 services of the agency, in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of the agency and - insofar as the services are protected by copyright - the author. The release of all so-called. "Open files" are therefore expressly not part of the contract.  The agency is not obliged to surrender. In other words, without a contractual assignment of the rights of use, including for "electronic work", the client has no legal claim to this. 
10.3  For the use of services of the agency that go beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright - the consent of the agency is required. The agency and the author are entitled to separate appropriate remuneration for this.
10.4  For the use of the agency's services or advertising material for which the agency has developed conceptual or creative templates, the agency's consent is also required after the agency contract has expired, 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 is entitled to the full agency fee agreed in the expired contract for uses according to Paragraph 4. In the 2nd or 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.
10.6  The customer is liable to the agency for any unlawful use in double the amount of the fee appropriate for this use. 
 
11.   Labelling
11.1  The agency is entitled to refer to the agency and, if necessary, to the author on all advertising material and in all advertising measures, without the customer being entitled to a claim for payment.
11.2  Subject to the customer's written revocation, 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).
 
12th   Guarantee 
12.1  The customer has to report any defects immediately, in any case within eight days after delivery / service by the agency, hidden defects within eight days after detection of the same, in writing with a description of the defect; otherwise the service is considered approved. In this case, the assertion of warranty and compensation claims as well as the right to avoid errors due to defects are excluded.
12.2  In the case of justified and timely notification of defects, the customer has the right to improve or exchange the delivery / service by the agency. The agency will remedy the deficiencies within a reasonable period of time, whereby the customer enables the agency to take all measures necessary to investigate and remedy the deficiencies. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the agency. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of improvement, it is the responsibility of the client to transfer the defective (physical) item at his own expense.
12.3  It is also the responsibility of the client to check the performance for its legal, in particular competition, trademark, copyright and administrative permissibility. The agency is only obliged to carry out a rough check of the legal admissibility. In the event of slight negligence or after fulfilling a possible warning obligation to the customer, the agency is not liable for the legal admissibility of content if this has been specified or approved by the customer.
12.4  The warranty period is six months from delivery / service. The right to recourse against the agency in accordance with Section 933b (1) AGBG expires one year after delivery / service. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded. 
 
13.   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 property damage or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, lost profit or consequential damage, damage due to delay , Impossibility, positive breach of contract, negligence when concluding the contract, due to defective or incomplete performance. The injured party has to 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 on the part of the agency for claims that are raised against the customer on the basis of the service provided by the agency (e.g. advertising measures) is expressly excluded if the agency has complied with its notification obligation or if it was not aware of any such obligation, whereby slight negligence does not harms. In particular, the agency is not liable for legal costs, the customer's own legal costs or the costs of the publication of judgments, as well as for any claims for damages or other claims by third parties; the customer has to indemnify and hold harmless the agency in this regard.
13.3  Claims for damages by the customer expire six months after knowledge of the damage; in any case, after three years from the agency's act of infringement. Claims for damages are limited in amount to the net order value.

14th   Applicable law
The contract and all mutual rights and obligations derived from it as well as claims between the agency and the customer are subject to Austrian substantive law, excluding its reference norms and excluding the UN sales law.
 
15th   Fulfillment and jurisdiction
15.1  The place of fulfillment is the seat of the agency. In the case of dispatch, 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 place of jurisdiction is the company headquarters Doris Fischer - do and tell for all legal disputes arising between the agency and the customer in connection with this contractual relationship, the competent court for the agency's headquarters is agreed. Regardless of this, the agency is entitled to sue the customer at his general place of jurisdiction.
15.3 Insofar as designations relating to natural persons are only given in masculine form in this contract, they refer to women and men in the same way. When applying the designation to certain natural persons, the respective gender-specific form must be used.
 
confirmation
When concluding the contract, the customer confirms that he has read the terms and conditions and that, in the event that an order is placed, these rules form the basis of the contractual relationship.