Terms and Conditions

1. Scope and Contract Conclusion

1.1 CM provides services exclusively based on the following General Terms and Conditions. These also apply to all future business relationships, even if no explicit reference is made to them.
1.2 Deviations from these terms and other supplementary agreements with the client are only effective if confirmed in writing by CM.
1.3 Any general terms and conditions of the client are not accepted unless explicitly and in writing otherwise agreed upon in individual cases. CM is not required to specifically object to the client’s general terms and conditions.
1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid one that comes closest to its intent and purpose.
1.5 Offers made by CM are subject to change and non-binding.

2. Scope of Services, Order Processing, and Customer Cooperation Obligations

‍2.1 The scope of the services to be provided is determined by the service description in the agency contract, any order confirmation by CM, and any briefing protocol. Subsequent changes to the scope of services require written confirmation by CM. Within the framework provided by the customer, CM has creative freedom in fulfilling the order.
2.2 All services by CM (especially drafts, sketches, final designs, brush prints, blueprints, copies, color prints, and electronic files) must be reviewed by the customer and approved within three working days of receipt. If no approval is provided in time, they are deemed approved by the customer.
2.3 The customer must provide CM with all necessary information and documents for service provision in a timely and complete manner. The customer must inform CM of all circumstances relevant to the execution of the order, even if these become known only during the course of the order. The customer bears the costs incurred if work must be repeated or delayed due to incorrect, incomplete, or subsequently changed information provided by the customer.
2.4 Furthermore, the customer is obliged to verify that the materials provided for the execution of the order (e.g., photos, logos) do not infringe on copyrights, trademark rights, or other third-party rights. CM is not liable for violations of such rights. Should CM be held liable for such violations, the customer must indemnify and hold CM harmless, covering all disadvantages incurred due to third-party claims.
2.5 If CM is tasked with designing a trademark for the customer (e.g., a product or company name), the customer is responsible for conducting a corresponding trademark similarity search to determine whether the trademark already exists or whether its use infringes on third-party rights. Similarly, the customer must verify the trademark's registrability and domain availability. CM is not liable for this unless expressly agreed in writing as part of the order, with the customer bearing all associated costs (e.g., query fees, attorney fees).

3. External Services / Third-Party Engagement

3.1 CM is, at its sole discretion, entitled to perform the service itself, involve knowledgeable third parties as vicarious agents in the provision of contractual services, and/or substitute such services ("External Service").
3.2 The engagement of third parties for external services is conducted either in CM's name or in the customer's name, but in any case, at the customer's expense. CM will carefully select such third parties and ensure they possess the necessary professional qualifications.
3.3 When CM commissions necessary or agreed external services, the respective contractors are not considered vicarious agents of CM.

4. Deadlines

4.1 Indicated delivery or service deadlines are only approximate and non-binding unless expressly agreed as binding. Binding deadlines must be documented in writing or confirmed in writing by CM.
4.2 If CM’s delivery/service is delayed for reasons beyond its control, such as force majeure or other unforeseeable and unavoidable events, its service obligations will be suspended for the duration and scope of the impediment, and the deadlines will be extended accordingly. If such delays last more than two months, both the customer and CM are entitled to withdraw from the contract.
4.3 If CM is in default, the customer can only withdraw from the contract after giving CM a written grace period of at least 14 days, which expires without result. Claims for damages due to non-performance or delay are excluded unless intent or gross negligence is proven.

5. Termination

5.1 CM is entitled to terminate the contract with immediate effect for an important reason. An important reason particularly exists if:
a) the performance of the service becomes impossible due to reasons attributable to the customer, or is further delayed despite the setting of a grace period of 14 days;
b) the customer continues to violate essential obligations under this contract, such as the payment of an overdue amount or cooperation obligations, despite written warning with a grace period of 14 days;
c) there are justified concerns regarding the customer's creditworthiness, and the customer fails to make advance payments or provide suitable security before the agency performs the service, upon CM's request;
d) bankruptcy or insolvency proceedings are initiated against the customer's assets or an application for the initiation of such proceedings is rejected due to lack of assets to cover the costs, or if the customer suspends payments.

5.2 The customer is entitled to terminate the contract for an important reason without setting a grace period. An important reason particularly exists if CM continues to violate essential provisions of this contract despite written warning with a grace period of 14 days to remedy the breach of contract.

6. Fees

6.1 Unless otherwise agreed, CM's fee claim arises for each individual service as soon as it has been performed. CM is entitled to request advances to cover the expenses. For contracts with an (annual) budget of €10,000 or more, or those extending over a longer period, CM is entitled to issue interim invoices or advance invoices, or request progress payments.
6.2 The fee is understood as a net fee plus the applicable statutory value-added tax. If no individual agreement is made, CM is entitled to a fee for the services provided and the transfer of copyright and trademark usage rights at the usual market rate.
6.3 All services by CM that are not explicitly covered by the agreed fee will be remunerated separately. All cash expenses incurred by CM shall be reimbursed by the customer.
6.4 Cost estimates by CM are non-binding. If it is foreseeable that the actual costs will exceed the cost estimates provided by CM by more than 15%, CM will inform the customer of the higher costs. The cost overrun is considered approved by the customer if the customer does not object in writing within three business days of receiving the notice and does not propose more cost-effective alternatives. In cases of cost overruns up to 15%, no separate notification is required. This overrun is considered pre-approved by the client.
6.5 For all work performed by CM that, for whatever reason, is not executed by the customer, CM is entitled to the agreed fee. The offsetting provision of § 1168 of the Austrian General Civil Code (AGBG) is excluded. By paying the fee, the customer does not acquire any usage rights to the work already performed; unexecuted concepts, drafts, and other documents must be promptly returned to CM.

7. Payment, Retention of Title

7.1 The fee is due for payment immediately upon receipt of the invoice and without any deduction, unless specific payment terms are agreed upon in writing for the individual case. This also applies to the recharging of all cash expenses and other disbursements. The goods supplied by CM remain the property of CM until full payment of the fee, including all ancillary liabilities, is made.
7.2 In the event of late payment by the customer, statutory default interest in the amount applicable to business transactions will apply. Furthermore, the customer agrees, in the event of default, to reimburse CM for any collection and reminder costs incurred that are necessary for appropriate legal enforcement. This includes the costs of two reminder letters at the usual market rate, as well as one reminder letter from a lawyer appointed to collect the debt. The assertion of further rights and claims remains unaffected.
7.3 In the event of late payment by the customer, CM may immediately demand payment for all services and partial services rendered under other contracts concluded with the customer. Furthermore, CM is not obligated to provide additional services until the outstanding amount is settled. If payment was agreed upon in installments, CM reserves the right, in the event of non-payment of installments or ancillary claims by the due date, to demand immediate payment of the entire outstanding balance.
7.4 The customer is not entitled to offset its own claims against CM's claims, unless the customer's claim has been acknowledged in writing by CM or has been legally determined by a court.

8. Ownership and Copyright

8.1 All services provided by CM, including those from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, finished drawings, concepts, negatives, slides), as well as individual parts thereof, remain the property of CM, as do the individual workpieces and original drafts, and can be reclaimed by CM at any time, particularly upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use the service for the agreed-upon purpose. Unless otherwise agreed, the customer may only use CM's services within Austria. The acquisition of usage and exploitation rights for CM's services requires, in any case, the full payment of the fees invoiced by CM for those services.
8.2 Any changes or modifications to CM's services, especially their further development by the customer or by third parties working for the customer, are only permissible with the express consent of CM and, if the services are copyright-protected, the consent of the author.
8.3 The use of CM's services that exceeds the originally agreed purpose and scope of use requires CM's consent, regardless of whether the service is copyrighted. CM and the author are entitled to a separate and appropriate compensation for this.
8.4 For the use of CM's services or advertising materials for which CM has developed conceptual or design templates, the consent of CM is required after the termination of the agency agreement, regardless of whether the service is copyrighted or not.
8.5 For uses according to paragraph 4, CM is entitled to the full agency fee originally agreed upon in the expired contract during the first year after the contract ends. In the 2nd and 3rd years after the contract expires, only half and a quarter of the agreed fee, respectively, is due. From the 4th year after the contract ends, no agency fee is payable.
8.6 The customer is liable to CM for any unauthorized use in double the amount of the appropriate fee for such use.
8.7 Unless explicitly agreed otherwise, the customer does not acquire the right to edit CM's services. If usage rights are mentioned, this does not also include the right to edit.
8.8 The provision of open, editable files (e.g., project files, layout files) is not part of the agreed services unless explicitly agreed upon in writing between CM and the customer. A separate fee will be charged for the provision of such files, which will be individually determined as part of the agreement.

9. Branding

9.1 CM is entitled to mention itself and, if applicable, the author, on all advertising materials and in all advertising measures, without the customer being entitled to any compensation for this.
9.2 Subject to the customer's right to revoke this in writing at any time, CM is entitled to refer to the business relationship with the customer on its own advertising media, particularly on its website, with its name and company logo.

10. Warranty

10.1 The customer must immediately report any defects, and in any case within eight days of delivery/performance by the agency, or hidden defects within eight days of discovering them, in writing and with a description of the defect. Otherwise, the performance is deemed accepted. In this case, the customer is excluded from asserting warranty and damage claims, as well as the right to contest the contract based on defects.
10.2 In the case of a legitimate and timely complaint about defects, the customer has the right to request correction or replacement of the delivery/performance by CM. CM will remedy the defects within a reasonable period, provided the customer allows CM all necessary actions for investigation and rectification of the defects. CM is entitled to refuse to correct the performance if this is impossible or would involve disproportionate effort. In such a case, the customer is entitled to statutory rights of withdrawal or reduction. In the case of correction, it is the customer's responsibility to send the defective (physical) goods at their own cost.
10.3 It is the responsibility of the customer to verify the performance for its legal compliance, particularly with regard to competition, trademark, copyright, and administrative law. CM is not liable for the accuracy of content that was provided or approved by the customer.
10.4 The warranty period is six months from delivery/performance. The right to recourse against the agency according to § 933b para. 1 ABGB expires one year after delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumption rule in § 924 AGBG is excluded.

11. Liability and Product Liability

11.1 In cases of slight negligence, CM is excluded from liability for property or financial damage to the customer, regardless of whether it concerns direct or indirect damage, loss of profit, consequential damage, damage due to delay, impossibility, positive breach of contract, fault at the time of conclusion of the contract, or defective or incomplete performance. The burden of proof for gross negligence lies with the injured party.
11.2 Any liability of CM for claims raised against the customer due to the performance provided by CM (e.g., advertising measure) is explicitly excluded, if CM has fulfilled its duty of disclosure or such a duty was not apparent to it, provided that slight negligence does not apply. In particular, CM is not liable for litigation costs, the customer's own legal fees, or costs related to the publication of judgments, as well as for any claims for damages or other third-party claims; the customer must indemnify and hold CM harmless in this regard.
11.3 The customer's claims for damages expire six months after the customer becomes aware of the damage; in any case, no later than three years from the act of infringement by CM. Claims for damages are limited in amount to the net contract value.

12. Data Protection

The customer explicitly agrees that CM collects, stores, and processes the data provided by the customer (name, address, email, credit card data, account transfer data) for the purposes of contract fulfillment and customer support, as well as for its own marketing purposes, with automated assistance. This consent can be revoked at any time. The customer agrees to receive electronic mail for advertising purposes until further notice.

13. Applicable Law

The contract and all mutual rights and obligations derived therefrom, as well as claims between CM and the customer, are subject to Austrian substantive law, excluding the UN Sales Convention (CISG).

14. Place of Performance and Jurisdiction

14.1 The place of performance is the competent court in the city of Salzburg. In case of shipment, the risk is transferred to the customer once CM has handed the goods over to the transport company chosen by CM.
14.2 The court of competent jurisdiction for any legal disputes arising between CM and the customer in connection with this contractual relationship shall be the competent court in the city of Salzburg. Notwithstanding this, CM is entitled to bring a claim against the customer at its general place of jurisdiction.

General Terms and Conditions

Christian Mimler: Soulful Brands for Digital Times
Schießstandstraße 68/11, 5061 Elsbethen, Austria
+43 650 381 23 40

As of: January 2024
These General Terms and Conditions correspond to the General Terms and Conditions for Advertising Agencies issued by the Advertising and Marketing Communications Association of the Austrian Federal Economic Chamber in September 2008.