Terms and Conditions

Advertising Agency
Kubanka Smart Media Solutions

Martin Kubanka
Roschegasse 3/26
0043 699 1723 3162
martin@kubanka.at
www.kubanka.at

Status: August 2023

 

1 Scope, Contract Conclusion

 

1.1 The agency "Kubanka Smart Media Solutions" (hereinafter referred to as "Agency") provides its services exclusively based on the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the customer, even if they are not explicitly referred to. The GTC are only applicable to business relationships with entrepreneurs, i.e., B2B transactions.

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1.2 The version valid at the time of contract conclusion is authoritative. Deviations from these terms and other supplementary agreements with the customer are only effective if confirmed in writing by the Agency.

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1.3 Any terms and conditions of the customer are not accepted, even if they are known, unless explicitly agreed otherwise in writing in an individual case. The Agency expressly objects to the customer's terms and conditions. A further objection to the customer's GTC by the Agency is not required.

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1.4 Changes to the GTC will be communicated to the customer and are considered agreed upon if the customer does not object to the changed GTC in writing within 14 days. The customer will be explicitly informed about the significance of silence and the specific changes made. This consent fiction does not apply to changes in essential service contents and fees.

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1.5 If individual provisions of these General Terms and Conditions are invalid, the validity of the remaining provisions and the contracts concluded based on them shall not be affected. The invalid provision shall be replaced by a valid one that comes closest to the intended purpose.

1.6 The Agency's offers are non-binding and without obligation.

 

2. Social Media Channels

 

The Agency explicitly informs the customer before placing an order that providers of "social media channels" (e.g., Facebook, hereinafter referred to as "providers") reserve the right in their terms of use to reject or remove advertisements and campaigns for any reason. Providers are therefore not obliged to forward content and information to users. Consequently, there is an incalculable risk for the Agency that advertisements and campaigns may be removed without justification. If another user files a complaint, providers may allow a counterstatement, but the content will still be immediately removed. The restoration of the original, lawful state may take some time. The Agency operates based on these terms of use of the providers, over which it has no influence, and also bases its customer's order on them. By placing an order, the customer expressly acknowledges that these terms of use partially determine the rights and obligations of any contractual relationship. 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 current terms of use and the ease with which any user can claim legal violations, leading to content removal, the Agency cannot guarantee that the commissioned campaign will always be accessible.

 

3. Concept and Idea Protection

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If the potential customer has already invited the Agency to create a concept in advance and the Agency complies with this invitation before the conclusion of the main contract, the following provisions apply:

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3.1 By inviting the Agency and accepting this invitation, a contractual relationship ("pitching contract") is established between the potential customer and the Agency. The GTC also apply to this contract.

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3.2 The potential customer acknowledges that the Agency incurs significant costs in preparing the concept, even though the customer has not yet assumed any performance obligations.

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3.3 The concept, in its textual and graphic components, is subject to copyright protection if it reaches a certain creative level. The use and modification of these components without the Agency's consent are prohibited by copyright law.

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3.4 The concept also includes advertising-relevant ideas that do not reach the required creative level for copyright protection. These ideas are the foundation of any creative process and can be seen as the initial spark for all later developments, defining the core of a marketing strategy. Thus, elements of the concept that are unique and give the marketing strategy its distinctive character are protected. Ideas within this agreement include, in particular, advertising slogans, texts, graphics, illustrations, and advertising materials, even if they do not reach the level of a protected work.

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3.5 The potential customer agrees not to exploit or use these creative advertising ideas presented by the Agency outside of a later main contract, nor to have them exploited or used by third parties.

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3.6 If the potential customer believes that the Agency has presented ideas that they had already developed before the presentation, they must inform the Agency in writing within 14 days after the presentation, providing evidence that allows a temporal classification.

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3.7 Otherwise, it is assumed that the Agency has presented the customer with a new idea. If the customer uses the idea, it is assumed that the Agency has contributed to its realization.

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3.8 The potential customer can release themselves from these obligations by paying appropriate compensation plus 20% VAT. The release only becomes effective after full payment has been received by the Agency.

 

4. Scope of Services, Order Processing, and Client's Duties to Cooperate

 

4.1 The scope of services to be provided results from the service description in the Agency contract, any order confirmation, and the client’s briefing protocol. Any subsequent changes require written confirmation from the Agency. The Agency has creative freedom within the framework specified by the client.

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4.2 All services (especially drafts, sketches, final artwork, proofs, blueprints, copies, color prints, and electronic files) must be reviewed by the client within three business days and approved. If no response is received within this period, the work is considered approved.

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4.3 The client must provide all necessary information and documents timely and completely and inform the Agency of any relevant circumstances. The client bears the costs of additional work due to incorrect, incomplete, or subsequently changed information.

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4.4 The client must ensure that provided materials (photos, logos, etc.) are free of third-party rights and suitable for the intended purpose. The Agency is not liable for third-party rights violations due to provided materials. If a third party claims rights violations, the client indemnifies the Agency.

 

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

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a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period of 14 days; 

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b) the customer continues to violate 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.

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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 client shall be 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 breach 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 € 10,000, 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 - irrespective of the other ongoing support provided by the agency - the client shall remunerate 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 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 is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed upon in writing in individual cases. This also applies to the onward invoicing of all cash expenses and other costs. The goods delivered by the agency remain the property of the agency until full payment of the fee, including all ancillary obligations.

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9.2 In the event of the customer's payment default, the statutory default interest applicable to business transactions shall apply. Furthermore, in the event of payment default, the customer undertakes to reimburse the agency for any dunning and collection costs incurred, insofar as they are necessary for appropriate legal action. This includes, in any case, the costs of two reminder letters at the standard market rate, currently at least €20.00 per reminder, as well as a reminder letter from a lawyer engaged for collection. The assertion of further rights and claims remains unaffected.

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9.3 In the event of the customer's payment default, the agency may immediately demand payment for all services and partial services provided under other contracts concluded with the customer.

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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.

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9.5 If payment in installments has been agreed, the agency reserves the right, in the event of non-timely payment of partial amounts or ancillary claims, to demand immediate payment of the entire outstanding debt (loss of deadline).

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9.6 The customer is not entitled to offset their own claims against claims of the agency, unless the customer's claim has been acknowledged in writing by the agency or legally established by a court.

 

10. Ownership Rights and Copyright

 

10.1 All services provided by the agency, including those from presentations (e.g., suggestions, ideas, sketches, drafts, scribbles, final artwork, concepts, negatives, slides), as well as individual parts thereof, remain the property of the agency, just like the individual workpieces and original designs, and can be reclaimed by the agency at any time—particularly upon termination of the contractual relationship. Upon payment of the fee, the customer acquires the right to use the service for the agreed purpose. Unless otherwise agreed, the customer may only use the agency's services within Austria. The acquisition of usage and exploitation rights for the agency’s services always requires full payment of the fees invoiced by the agency. If the customer uses the agency’s services before this point, such use is based on a revocable loan arrangement.

 

10.2 Modifications or edits to the agency’s services, particularly further development by the customer or third parties acting on their behalf, are only permitted with the agency’s express consent and—where the services are protected by copyright—with the author's consent. The release of all so-called “open files” is explicitly not part of the contract. The agency is not obligated to provide them. This means that, without a contractual assignment of usage rights, including for “electronic work,” the client has no legal claim to them.

 

10.3 For any use of the agency's services beyond the originally agreed purpose and scope, the agency's approval is required—regardless of whether the service is protected by copyright. In such cases, the agency and the author are entitled to a separate and appropriate fee.

 

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 approval is also required after the termination of the agency contract, regardless of whether the service is protected by copyright.

 

10.5 For usage as defined in section 10.4, the agency is entitled to claim the full agency fee agreed in the expired contract within the first year after the contract ends. In the second and third years after contract termination, the agency is entitled to half and one-quarter of the agreed fee, respectively. From the fourth year after contract termination, no agency fee is payable.

 

10.6 The customer is liable to the agency for any unauthorized use at twice the appropriate fee for such use.

 

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).

 

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 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 his 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 right of recourse against the Agency pursuant to Section 933b (1) AGBG shall expire one year after delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption provision of § 924 AGBG is excluded. 

 

13 Liability and product liability

 

All works must be checked by the customer! The agency accepts no liability for errors, incorrect versions or other incorrect submissions or transmissions. The client agrees not to assert any claims for damages and to indemnify and hold the agency harmless for any possible claims by third parties. 

 

In particular, the following must be checked: Telephone numbers, e-mail addresses on websites, spelling on written works and texts intended for publication. Images, videos, AI-generated content, subjects and other works must be checked.

 

In all cases, the agency and its employees, subcontractors or other vicarious agents shall not be liable for property damage or financial loss suffered by the customer or third parties, 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 agency shall inform the client in good time of any legal risks that it recognizes in the content or design of the planned advertising measures. If the agency considers a legal (e.g. competition law) examination by a particularly competent person to be necessary for the implementation of the measures, it shall inform the customer of this. If the agency has pointed out concerns and the customer nevertheless insists on the implementation of the advertising measure, the agency shall not be liable for any resulting disadvantages and risks. The client shall indemnify the agency against all third-party claims.

 

14 Applicable law

 

The contract and all reciprocal rights and obligations and claims between the Agency and the Customer derived therefrom 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 place of jurisdiction

 

15.1 The place of performance shall be the registered office of the Agency. 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 shall be entitled to sue the Client at its general place of jurisdiction.

 

15.3 Insofar as this contract refers to natural persons only 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 shall be used.

 

Final clause

The customer confirms that he/she has taken note of the GTC and that, if an order is placed, the contractual relationship is based on these rules.