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Conditions

1. Validity

 

1.1. The advertising agency ArkGenix GmbH and the associated brand DigitalArk - hereinafter both referred to collectively as the agency - provide their services exclusively on the basis of these General Terms and Conditions. These also apply to all future business relationships, even if no express reference is made to them.

 

1.2. Subsidiary agreements, reservations, changes or additions to these general terms and conditions must be in writing to be valid; This also applies to deviations from the written form requirement.

 

1.3. Conditions of the contractual partner that conflict with or deviate from these terms and conditions

Even if known, they will only be effective if they are expressly acknowledged by the agency in writing.

 

1.4. If individual provisions of these General Terms and Conditions are invalid, this will 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 an effective one that comes closest to its meaning and purpose.

 

2. Conclusion of contract

 

2.1. The basis for concluding the contract is the agency's respective offer or the customer's order, which specifies the scope of services. The agency's offers are subject to change and non-binding.

 

2.2. All items in the offer that are not expressly marked as optional are in any case included in the scope of the order in the event of an order (oral, written or implied) and must be paid for accordingly.

In principle, the prices for services that are one-off are listed right-aligned in the offer. For recurring services (such as web hosting, CMS maintenance, CMS support, etc.), the (also recurring) costs are listed following the position text, along with the frequency to be paid, and are not shown in the total price, especially since their amount depends on the respective Depends on the running time and cannot be stated in its entirety.  These recurring costs are billed at the frequency stated in the offer.

 

2.3. If the customer places an order, he is bound to it for two weeks from the date it is received by the agency. The contract is concluded when the agency accepts the order. Acceptance must be made in writing (e.g. through an order confirmation), unless the agency clearly indicates (e.g. by taking action based on the order) that it accepts the order.

 

3. Scope of services, order processing and the customer's obligation to cooperate

 

3.1. The scope of the services to be provided results from the customer's order or the service description or the information in the contract. Subsequent changes to the service content must be made in writing.

 

3.2. All services provided by the agency (in particular all preliminary designs, sketches, final artwork, brush prints, blueprints and color prints) must be checked by the customer and approved within three days. If they are not released on time, they are deemed to have been approved by the customer.

 

3.3. The customer will immediately provide the agency with all information and documents required to provide the service. He will inform you of all events that are important for the execution of the order, even if these circumstances only become known during the execution of the order. The customer bears the expense resulting from work having to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information.

 

3.4. The customer is further obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any existing copyrights, trademark rights or other rights of third parties. The agency is not liable for any violation of such rights. If a claim is made against the agency due to such a legal violation, the customer shall indemnify and hold the agency harmless; He must compensate her for all disadvantages that she incurs as a result of claims made by third parties.

 

4. Third-party services / commissioning of third parties

 

4.1. The agency is entitled, at its own discretion, to carry out the service itself, to use third parties to provide contractual services and/or to substitute such services (“assistant”).

 

4.2. Errand assistants are commissioned either in the customer's own name or in the customer's name, but in any case for the customer's account.

 

4.3. The agency will carefully select errand assistants and ensure that they have the necessary professional qualifications.

 

5. Dates

 

5.1. Deadline and appointment agreements must be recorded or confirmed in writing. The agency makes every effort to adhere to the agreed deadlines. However, non-compliance with the deadlines only entitles the customer to assert his legal rights if he has granted the agency a reasonable grace period of at least 14 days. This period begins when the agency receives a warning letter.

 

5.2. If the grace period has expired without result, the customer can withdraw from the contract. An obligation to pay damages arising from the delay only exists in the event of intent or gross negligence on the part of the agency.

 

5.3. In any case, unavoidable or unforeseeable events - in particular delays by the agency's contractors - release the agency from complying with the agreed delivery date. The same applies if the customer is in default with his obligations necessary to carry out the order (e.g. provision of documents or information). In this case, the agreed date will be postponed at least to the extent of the delay.

 

6. Withdrawal from the contract

 

The agency is particularly entitled to withdraw from the contract if:

 

  • the performance of the service is impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period; 

  • There are legitimate concerns about the customer's creditworthiness and the customer neither makes advance payments at the agency's request nor provides suitable security before the agency provides the service.

 

7. Fee

 

7.1. Unless otherwise agreed, the agency's claim to a fee for each individual service arises as soon as it has been provided. The agency is entitled to request advance payments to cover its expenses. For an order volume of EUR 5,000 or more, the agency is entitled to invoice up to 25% of the agreed fee immediately after the order is placed.

 

7.2. Unless otherwise agreed, the agency receives a fee of 10% of the advertising budget processed through it for the services provided and compensation for copyright and trademark usage rights. The fee is exclusive of statutory sales tax.

 

7.3. All agency services that are not expressly covered by the agreed fee will be paid for separately. All cash expenses incurred by the agency must be reimbursed by the customer.

 

7.4. Cost estimates from the agency are generally non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the agency by more than 10%, 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 days of this notice and at the same time announce cheaper alternatives.

 

7.5. The agency is entitled to appropriate remuneration for all work carried out by the agency that is not carried out by the customer for whatever reason. By paying this fee, the customer does not acquire any rights to this work; Concepts, drafts and other documents that have not been implemented must be returned to the agency immediately.

8. Payment

 

8.1. The agency's invoices are due net cash without any deductions from the invoice date and, unless otherwise agreed, are to be paid within ten calendar days of receipt of the invoice. In the event of late payment, default interest of 10% p.a. is deemed to be agreed. Delivered goods remain the property of the agency until full payment has been made.

 

8.2. The customer undertakes to bear all costs and expenses associated with the collection of the claim, such as, in particular, collection costs or other costs necessary for appropriate legal prosecution.

 

8.3. If the customer defaults on payment, the agency can immediately declare all services and partial services provided within the framework of other contracts concluded with the customer due.

 

8.4. The customer is not entitled to set off his own claims against the agency's claims, unless the customer's claim has been recognized in writing by the agency or has been determined by a court. The customer's right of retention is excluded.

 

9. Presentations

 

9.1. The agency is entitled to an appropriate fee for participating in presentations, which, in the absence of an agreement, at least covers the agency's entire personnel and material costs for the presentation as well as the costs of all third-party services.

 

9.2. If the agency does not receive an order after the presentation, all of the agency's services, in particular the presentation documents and their content, remain the property of the agency; the customer is not entitled to continue using them – in whatever form; Rather, the documents must be returned to the agency immediately. The passing on of presentation documents to third parties as well as their publication, reproduction, distribution or other use is not permitted without the express consent of the agency.

 

9.3. The customer is also prohibited from further using the ideas and concepts introduced during the presentation, regardless of whether the ideas and concepts are protected by copyright. By paying the presentation fee, the customer does not acquire any exploitation or usage rights to the services presented.

 

9.4. If the ideas and concepts introduced during a presentation to solve communication tasks are not used in advertising materials designed by the agency, the agency is entitled to use the ideas and concepts presented elsewhere.

10. Ownership and Copyright Protection

 

10.1. All services provided by the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and original designs, remain the property of the agency and can be used by the Agency can be requested back at any time - especially when the contractual relationship is terminated. The customer purchases by paying the fee

only the right of use (including reproduction) for the agreed purpose and within the agreed scope of use. Unless otherwise agreed with the agency, the customer may only use the agency's services himself, exclusively in Austria or Switzerland and only for the duration of the agency contract. The acquisition of rights of use and exploitation of the agency's services always requires full payment of the fees charged by the agency.

 

10.2. Changes to the agency's services, in particular their further development by the customer or by third parties acting on their behalf, are only permitted with the express consent of the agency and - if the services are protected by copyright - of the author.

 

10.3. The agency's consent is required for the use of the agency's services that go beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright. 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 materials for which the agency has developed conceptual or design templates, the agency's consent is also required after the expiry of the agency contract, 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 amount of the agency remuneration agreed in the expired contract. 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, there is no longer any agency fee to be paid.

 

11. Labeling

 

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 any payment for this. For websites created by the agency, the agency is entitled to add a link to the agency website in addition to the labeling, without the client or operator of the website being entitled to any payment for this.

 

11.2. Subject to the customer's written revocation, which is possible at any time, the agency is entitled to refer to the existing business relationship with the customer on its own advertising media and in particular on its Internet website using the name and company logo.

12. Maintenance, warranty and compensation

 

12.1. Unless there is a support or maintenance contract that expressly describes these services, the agency is not obliged to adapt websites or other software applications provided to technical (e.g. new server environment, new browsers or browser versions, new screen sizes, new display devices). , changes to interfaces, changes to third-party tools used), security-related or legal changes to the framework conditions or to update the software provided in any other way.

 

12.2. The customer must make any complaints in writing and justify them immediately, but in any case within three days of the agency's service. In the case of justified and timely complaints, the customer only has the right to have the agency improve or replace the service.

 

12.3. If the complaint is justified, the defects will be remedied within a reasonable period of time, with the customer allowing the agency to take all measures necessary to investigate and correct the defect. The agency is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for the agency.

 

12.4. The reversal of the burden of proof according to § 924 ABGB to the detriment of the agency is excluded. The customer must provide proof of the existence of the defect at the time of handover, the time at which the defect was discovered and the timeliness of the complaint.

 

12.5. Claims for damages by the customer, in particular due to delay, impossibility of performance, positive breach of contract, negligence in concluding the contract, defective or incomplete performance, consequential damage or due to unlawful acts are excluded, unless they are based on intent or gross negligence on the part of the agency.

 

12.6. Any claim for damages can only be made within six months of becoming aware of the damage.

 

12.7. Claims for damages are limited to the amount of the order value excluding taxes.

 

13. Liability

 

13.1. The agency will carry out the work assigned to it in compliance with generally recognized legal principles and will inform the customer in a timely manner of any risks that it can identify. Any liability of the agency for claims made against the customer due to the advertising measure (the use of a license plate) is expressly excluded if the agency has fulfilled its obligation to provide information; In particular, the agency is not liable for legal costs, the customer's own legal fees or costs of publication of judgments as well as for any claims for damages or similar claims from third parties.

 

13.2. The agency is only liable for damages within the scope of the statutory provisions if intent or gross negligence can be proven. Liability for slight negligence is excluded. The injured party must prove the existence of gross negligence.

14. Applicable Law

 

Only Austrian law applies to the legal relationships between the customer and the agency, excluding international reference standards. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.

15. Place of performance and jurisdiction

 

15.1. The place of performance is the agency’s headquarters.

 

15.2. The place of jurisdiction for all disputes arising directly between the agency and the customer is the Austrian court with local and factual jurisdiction over the agency's headquarters.

As of March 2023

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