General terms and conditions
of the company HFMEDIA GmbH
Panoramaweg 4
4663 Laakirchen
Preliminary remark
Insofar as these GTC only refer to natural persons in the masculine form, they refer to women and men in the same way. When applying the term to certain natural persons, the respective gender-specific form must be used.
- Validity, conclusion of contract
1.1 HFMEDIA GmbH (hereinafter referred to as the “Agency”) shall provide its services exclusively on the basis of the following General Terms and Conditions (GTC). These shall apply to all legal relationships between the Agency and the Client, even if no express reference is made to them. The GTC shall apply exclusively to legal relationships with entrepreneurs, i.e. B2B.
1.2 The version valid at the time the contract is concluded shall apply. Deviations from these and other supplementary agreements with the customer shall only be effective if they are confirmed in writing by the Agency.
1.3 Any terms and conditions of the customer shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The Agency expressly objects to the Client’s GTC. No further objection to the client’s GTC by the agency is required.
1.4 Amendments to the GTC shall be notified to the customer and shall be deemed to have been agreed if the customer does not object to the amended GTC 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 shall not apply to changes to essential service contents 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 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 oder twitter twitter), the following special features must be observed:
2.1 Before placing the order, the agency expressly points out to the customer that the providers of “social media channels” (e.g. Facebook, hereinafter referred to as “providers” for short) reserve the right in their terms of use to reject or remove advertisements and advertising appearances for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which cannot be calculated by the agency, that advertisements and appearances may be removed for no reason. In the event of a complaint from another user, the providers are granted the option of a counterstatement, but even in this case the content will be removed immediately. In this case, it may take some time to restore the original, lawful status. 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.
2.2. The agency expressly draws the customer’s attention to the fact that the functionality of social media platforms means that the rights of third parties, in particular copyrights, may be infringed (e.g. reproduction of a photograph when a link is set). Due to the speed, the agency can neither monitor third-party content nor clarify the rights with regard to the content it uses itself.
2.3 The agency works on the basis of the terms of use of the providers and also bases the customer’s order on these. By placing the 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 their often unfounded strictness and/or inconsistency.
- Protection of concepts and ideas
If the potential client has already invited the agency to create a concept in advance and the agency accepts this invitation before the conclusion of the main contract, the following provision shall apply:
3.1 The potential client and the agency enter into a contractual relationship (“pitching contract”) as early as the invitation and the agency’s acceptance of the invitation. This contract is also based on the GTC.
3.2 The potential client acknowledges that the agency is already providing cost-intensive preliminary services with the concept development, although it has not yet assumed any performance obligations itself.
3.3 The linguistic and graphic parts of the concept, insofar as they reach the level of a work, are protected by copyright law. The potential client is not permitted to use or edit these parts without the consent of the agency, if only on the basis of copyright law.
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 these creative advertising ideas presented by the agency within the framework 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 ideas were presented to him by the agency which he had already come up with before the presentation, he must inform the agency of this by e-mail within 14 days of the day of the presentation, citing evidence which permits a chronological allocation.
3.7 In the opposite case, the contracting parties shall assume that the Agency has presented the potential client with an idea that is new to him. If the idea is used by the client, it shall be assumed that the agency has made a profit.
3.8 The potential client may release itself from its obligations under this point by paying appropriate compensation, which shall be calculated on a case-by-case basis, plus 20% VAT. The exemption shall not take effect until the Agency has received full payment of the compensation.
- Scope of services, order processing and customer’s duty to cooperate
4.1 The scope of the services to be provided is set out in 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 shall require written confirmation by the Agency. Within the framework specified by the client, the agency shall have freedom of design in the fulfillment of the order.
4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the Client and approved by the Client within three working days of receipt by the Client. After this period has elapsed without feedback from the customer, they shall be deemed to have been approved by the customer.
4.3 The Client shall provide the Agency with all information and documents required for the provision of the service in a timely and complete manner. He shall inform the Agency of all circumstances that are of significance for the execution of the order, even if these only become known during the execution of the order. The customer shall bear the costs incurred if work has to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information provided by the customer.
4.4 The customer shall also be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. The Agency shall not be liable in the event of merely slight negligence or after fulfilling its duty to warn – at least in the internal relationship with the customer – due to an infringement of such third-party rights by the documents provided. If a claim is made against the Agency by a third party due to such an infringement of rights, the Client shall indemnify and hold the Agency harmless; the Client shall compensate the Agency for all disadvantages incurred by the Agency as a result of a claim by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support the agency in the defense against any third-party claims. The customer 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 own discretion to perform the service itself, to make use of expert third parties as vicarious agents in the provision of contractual services and/or to substitute such services (“third-party service”).
5.2 The commissioning of third parties within the scope of a third-party service shall be carried out either in the Agency’s own name or in the name of the Customer, the latter after prior notification to the Customer. The Agency shall select this third party carefully and ensure that it has the necessary professional qualifications.
5.3 The customer shall assume obligations towards third parties named to the customer that extend beyond the term of the contract. This shall also expressly apply in the event of termination of the agency contract for good cause.
6 Deadlines
6.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be approximate and non-binding. Binding deadline 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 events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the performance 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 for more than two months, 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 having granted the Agency a reasonable grace period of at least 14 days in writing, which has expired without result. Claims for damages by the client due to non-fulfillment or delay are excluded, except in the case of proof of intent or gross negligence.
7 Premature 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 performance of the service becomes impossible for reasons for which the client is responsible or is further delayed despite the setting of a grace period of 14 days;
- b) the customer continues to breach material obligations under this contract, such as payment of a due amount or obligations to cooperate, despite a written warning with a grace period of 14 days.
- c) there are justified concerns regarding 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 terminate the contract for good cause without setting a grace period. 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 14 days to remedy the breach of contract.
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. From an order volume with an (annual) budget of € 500 or those that extend over a longer period of time, the Agency shall be entitled to issue interim invoices 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 individual cases, the Agency shall be entitled to a fee at the usual market rate for the services rendered 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 remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
8.4 The Agency’s cost estimates are non-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 customer if the customer does not object in writing within three working days of this notification and at the same time announces more cost-effective alternatives. In the case of a cost overrun of up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed to have been approved by the client from the outset.
8.5 If the Client unilaterally changes or cancels work commissioned without involving the Agency – without prejudice to the Agency’s other ongoing support – the Client shall remunerate the Agency for the services rendered up to that point 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 by the Agency, the Client shall also reimburse the Agency for the entire fee (commission) agreed for this order, whereby the offsetting remuneration of § 1168 AGBG is excluded. Furthermore, the Agency shall be indemnified and held harmless against any claims by third parties, in particular by the Agency’s contractors. Upon payment of the fee, the customer shall not acquire any rights of use to 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 due for payment immediately upon receipt of the invoice and without deduction, unless special terms of payment have been agreed in writing in individual cases. This shall also apply to the charging 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 remuneration including all ancillary liabilities.
9.2 If the customer is in default of payment, statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default of payment, the customer undertakes to reimburse the Agency for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal action. In any case, this includes the costs of two reminders in the usual market amount of currently at least € 45.00 per reminder as well as a reminder from a lawyer commissioned with the collection. The assertion of further rights and claims shall remain unaffected.
9.3 In the event of default of payment by the customer, the agency may demand immediate payment of all services and partial services provided under other contracts concluded with the customer.
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 installments has been agreed, 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 (loss of deadline).
9.6 The Customer shall not be entitled to offset its own claims against claims of the Agency unless the Customer’s claim has been recognized by the Agency in writing or established by a court of law.
9.7 Cancellation conditions: Unless otherwise agreed, the following cancellation conditions apply: 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 the event of cancellation on the day of the agreed date or in the event of a no-show
10 Property 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. By paying the fee, the client acquires the right of use for the agreed purpose. Unless otherwise agreed, however, the customer may only use the Agency’s services in Austria. The acquisition of rights of use and exploitation of the Agency’s services shall in any case require full payment of the fees invoiced by the Agency. If the customer uses the Agency’s services before this time, this use shall be based on a loan relationship that can be revoked at any time.
10.2 Changes or adaptations of the Agency’s services, in particular their further development by the Client or by 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 surrender them. This means that the client has no legal claim to the rights of use for “electronic works” without a contractual assignment.
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 appropriate 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 conceptual or design templates after expiry of the Agency Agreement, irrespective of whether this service is protected by copyright or not.
10.5 In the first year after the end of the contract, the Agency shall be entitled to the full agency fee agreed in the expired contract for use in accordance with paragraph 4. In the 2nd or 3rd year after expiry of the contract, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration shall be payable.
10.6 The Client shall be liable to the Agency for any unlawful use in double the amount of the appropriate fee for such use.
10.7 It is not possible for the agency to check content (photos, texts, logos, music) provided by the customer for legal infringements. The customer shall be responsible for clearing the rights for such content provided.
11 Labeling
11.1. The Agency shall be entitled to refer to the Agency and, if applicable, to the author on all advertising media and in all advertising measures, without the Client being entitled to any remuneration for this.
11.2 Subject to written revocation by the Customer, which is possible at any time, the Agency shall be entitled to refer to the existing or previous business relationship with the Customer by name and company logo on its own advertising media and in particular on its Internet website (reference notice).
11.3 If the order placed with the agency does not consist of the creation of a trademark, the agency shall not be obliged to check the customer’s trademark for any conflicts. In the event that the creation of a trademark is commissioned, the Agency shall only undertake a rough check. The obligation to carry out a rough check shall not apply if the agency makes an express agreement with the client.
11.4 A rough check for the entire EU area is not possible for the Agency due to a lack of resources and language skills. If there is interest in an EU-wide search or an in-depth examination, the Agency recommends consulting a lawyer who shall carry out a comprehensive similarity search from a legal point of view.
12 Warranty
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 of recognizing them, in writing with a description of the defect; otherwise any deviation in the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
12.2 In the event of justified and timely notification of defects, the customer shall be entitled to improvement or replacement of the delivery/service by the agency. The Agency shall rectify the defects within a reasonable period of time, whereby the Client shall enable the Agency to take all measures necessary to investigate and rectify 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 customer shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, the client shall be responsible for transferring the defective (physical) item at its own expense.
12.3 The client shall also be responsible for checking the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. The Agency shall only be obliged to carry out a rough check of legal admissibility. The Agency shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the customer if this was specified or approved by the customer.
12.4 The warranty period shall be six months from delivery/service. The customer is not entitled to withhold payments due to defects. 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 its employees, contractors or other vicarious agents (“people”) for property damage or financial loss suffered by the Customer shall be excluded, regardless of whether this relates to 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 existence of gross negligence must be proven by the injured party. Insofar as the Agency’s liability is excluded or limited, this shall also apply to the personal liability of its “people”.
13.2 Any liability of the Agency for claims made against the Client on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has complied with its duty to inform or if such a duty was not recognizable to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the Client’s own legal fees or the costs of the publication of judgments or for any claims for damages or other third-party claims; the Client shall indemnify and hold the Agency harmless in this respect.
13.3 The customer’s claims for damages shall expire six months after knowledge of the damage, but in any case after three years from the Agency’s act of infringement. Claims for damages shall be limited to the net order value.
14 Applicable law
The contract and all reciprocal rights and obligations derived from it as well as claims between the Agency and the Customer 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 Agency’s registered office. In the case of shipment, the risk shall pass to the Customer as soon as the Agency has handed over the goods to the carrier chosen by it.
15.2 The place of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court having subject-matter jurisdiction for the registered office of the Agency. Notwithstanding this, the agency is entitled to sue the customer at his general place of jurisdiction.
16 Risk information
16.1 If the agency specifically informs the client before the start of the campaign that a campaign entails a specific risk or that the rights of third parties could be infringed, and if the client accepts this risk, it shall be deemed agreed and assumed that the agency has fulfilled its contractual obligations.
- privacy policy pursuant to Articles 13 and 14 GDPR
17.1 We process your personal data that fall under the following data categories
– Name/company,
– profession,
– Date of birth,
– company 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 voluntarily provided us with data about yourself and we process this data on the basis of your consent for the following purposes:
– Customer support and
– for our own advertising purposes, for example for sending 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).
17.3 You can revoke this consent at any time. If you withdraw your consent, we will no longer process your data for the above-mentioned purposes from that point on. To withdraw your consent, please contact: office@hfmedia.at
17.4 The data provided by you 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 store your data until revoked. We use processors for this data processing. The appropriate level of protection results from an adequacy decision of the European Commission in accordance with Art. 45 GDPR.
You can reach us using the following contact details:
office@hfmedia.at
+43 650 2704895
17.6 Information on legal remedies
In principle, you have the rights to information, rectification, erasure, 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 rights have been violated in any other way, you can lodge a complaint with the supervisory authority. In Austria, the data protection authority is responsible.
18 Aerial photography
18.1 If a circumstance arises during the production of the aerial photographs that makes the contractual production impossible, the agency shall only be responsible for intent and gross negligence. The agency confirms that it fulfills the requirements for registration as a drone operator, including the insurance obligation.
- Approval
By commissioning the Agency, the client confirms that he has read the General Terms and Conditions and that, in the event of placing the order, these rules shall form the basis of the contractual relationship.