General Terms and Conditions

1. Validity, Conclusion of Contract
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1.1 Jennifer Burs (hereinafter referred to as the 'Agency') provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These terms and conditions apply to all legal relationships between the Agency and the customer, even if not expressly referred to. The GTC apply exclusively to business relationships with entrepreneurs, i.e., B2B.
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1.2 The version valid at the time of the conclusion of the contract shall be binding. Deviations from these GTC and any other additional agreements with the customer shall only be effective if confirmed in writing by the Agency.
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1.3 Any terms and conditions of the customer will not be accepted, even if known, unless explicitly and in writing agreed otherwise in individual cases. The Agency expressly rejects the customer's terms and conditions. No further objection to the customer's terms and conditions is required by the Agency.
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1.4 Changes to the GTC will be notified to the customer and are considered agreed if the customer does not object to the amended GTC in writing within 14 days. The customer will be explicitly informed of the significance of silence and the specific changes in the notification. This approval fiction does not apply to changes in essential service content and fees.

1.5 If individual provisions of these General Terms and Conditions are ineffective, this does not affect the validity of the other provisions and contracts concluded on the basis thereof. The ineffective provision shall be replaced by an effective one that comes closest to its meaning and purpose.
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1.6 The offers of the Agency are non-binding and without obligation.


2. Social Media Channels
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The Agency expressly informs the customer before placing an order that the providers of 'social media channels' (e.g., Facebook, hereinafter referred to as the 'Providers') reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Therefore, the Providers are not obliged to transmit content and information to users. Consequently, there is an unpredictable risk that advertisements and appearances may be removed without cause by the Agency. In the event of a complaint by another user, the Providers do allow for a response; however, even in this case, the content will be immediately removed. The restoration of the original, lawful state may take some time in this case. The Agency operates on the basis of these terms of use of the Providers, over which it has no influence, and also includes them in the customer's order. With the order placement, the customer expressly acknowledges that these terms of use determine the rights and obligations of any contractual relationship. The Agency intends to execute 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 ease with which any user can claim legal violations and thus achieve content removal, the Agency cannot guarantee that the commissioned campaign will be accessible at all times.


3. Concept and Idea Protection
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If the potential customer has already invited the Agency to create a concept, and the Agency complies with this invitation before the conclusion of the main contract, the following provision shall apply:

3.1 The potential customer and the Agency enter into a contractual relationship ('pitching contract') already through the invitation and acceptance of the invitation by the Agency. The GTC also apply to this contract.

3.2 The potential customer acknowledges that the Agency is already providing cost-intensive preliminary services with the development of the concept, even though the potential customer has not yet assumed any performance obligations.

3.3 The concept, in its linguistic and graphic parts, as far as they reach the level of a work, is protected by copyright. Any use and modification of these parts without the Agency's consent is not allowed to the potential customer by the Copyright Act alone.

3.4 In addition, the concept contains advertising ideas that do not reach the level of a work and therefore do not enjoy copyright protection. These ideas are at the beginning of any creative process and can be defined as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic imprint are protected as ideas under this agreement. Ideas in the sense of this agreement include, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach the level of a work.

3.5 The potential customer undertakes to refrain from exploiting or allowing others to exploit creative advertising ideas presented by the Agency in the context of the concept economically outside the corrective of a main contract to be concluded later.

3.6 If the potential customer believes that the Agency has presented ideas that he already had before the presentation, he must inform the Agency of this within 14 days after the day of the presentation by email, providing evidence that allows for a chronological assignment.

3.7 In the opposite case, the contracting parties assume that the Agency has presented a new idea to the potential customer. If the idea is used by the customer, it is assumed that the Agency has been instrumental in this.

3.8 The potential customer can be released from his obligations under this section by paying reasonable compensation, calculated on a case-by-case basis, plus 20% value-added tax. The release takes effect only after full payment of the compensation to the Agency.


4. Scope of Services, Order Processing, and Customer's Obligations
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4.1 The scope of services to be provided is determined by the service description in the agency contract or any subsequent order confirmation by the agency, as well as any briefing documents ("Offer Documents"). Any subsequent changes to the scope of services require written confirmation by the agency. Within the framework set by the customer, the agency has creative freedom when fulfilling the assignment.

4.2 The customer is required to review and approve all agency services, especially preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints, and electronic files, within three working days of receiving them. If the customer does not respond within this timeframe, they are considered to have approved the materials.

4.3 The customer must provide the agency with all necessary information and materials in a timely and complete manner for the execution of the services. The customer is obligated to inform the agency of any circumstances relevant to the project, even if they become known during the project. The customer is responsible for any additional costs resulting from the agency having to repeat or delay work due to incorrect, incomplete, or modified information provided by the customer.

4.4 Furthermore, the customer is obligated to verify materials provided for the execution of the project (such as photos, logos, etc.) for any potential copyright, trademark, or other third-party rights (rights clearance) and guarantees that the materials are free from third-party rights and can be used for the intended purpose. In cases of slight negligence or after fulfilling their duty to warn, the agency is not liable to the customer for any infringements of such third-party rights arising from the materials provided. If the agency is held accountable by a third party for such an infringement, the customer will indemnify and hold the agency harmless, covering all damages, including the costs of adequate legal representation. The customer commits to assisting the agency in defending against any potential claims from third parties and will provide all necessary documents without request.


5. Outsourced Services / Commissioning Third Parties**

5.1 The agency has the discretionary right to perform services themselves, engage knowledgeable third parties as agents for providing contract-related services, and/or substitute such services ("outsourced services").5.2 The commissioning of third parties for outsourced services may occur either in the agency's name or on behalf of the customer, with prior notification to the customer. The agency will carefully select such third parties and ensure their professional qualifications.5.3 The customer is obligated to assume responsibilities towards third parties named by the agency, even beyond the duration of the contract. This explicitly applies in the event of termination of the agency contract for significant reasons.


6. Deadlines

6.1 Specified delivery or performance deadlines, unless expressly confirmed as binding in writing, are only approximate and non-binding. Binding deadline agreements must be documented in writing or confirmed in writing by the agency.

6.2 If the agency's delivery/performance is delayed for reasons not attributable to them, such as force majeure and other unforeseeable events that cannot be reasonably averted, performance obligations are suspended for the duration and extent of the impediment, and the deadlines are extended accordingly. If such delays persist for more than two months, both the customer and the agency have the right to terminate the contract.

6.3 If the agency is in default, the customer can only terminate the contract after granting the agency a written, reasonable grace period of at least 14 days, and it remains unfruitful. Claims for damages due to non-performance or delays are excluded unless there is evidence of intent or gross negligence.


7. Early Termination
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7.1 The agency is entitled to terminate the contract with immediate effect for significant reasons, especially when a) the performance becomes impossible or further delayed due to reasons caused by the customer, or b) the customer continuously breaches essential obligations under this contract, such as payment of outstanding amounts or participation requirements, despite written warnings with a 14-day grace period, or c) there are legitimate concerns about the customer's creditworthiness, and the customer fails to make advance payments or provide suitable security upon the agency's request.

7.2 The customer is entitled to terminate the contract with immediate effect for significant reasons without a grace period, especially if the agency continually violates essential provisions of this contract despite a written warning and a reasonable grace period of at least 14 days to rectify the contract violation.


8. Fees
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8.1 Unless otherwise agreed, the agency's fee is due for each individual service as soon as it has been provided. The agency is entitled to request advances to cover its expenses. For assignments with a (annual) budget of € …………….. or those extending over a longer period, the agency is authorized to issue interim invoices or request advance payments.

8.2 The fee is understood as a net fee plus statutory value-added tax. In the absence of specific agreements, the agency is entitled to a fee for the services provided and the transfer of intellectual property and trademark rights in the customary amount.

8.3 All agency services that are not explicitly covered by the agreed fee will be separately remunerated. The customer is responsible for reimbursing all cash expenses incurred by the agency.

8.4 Estimates provided by the agency are non-binding. If it becomes apparent that the actual costs will exceed the costs provided by the agency in writing by more than 15%, the agency will notify 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 working days of this notification and simultaneously provides more cost-effective alternatives. If the cost overrun is up to 15%, separate notification is not required. The customer is deemed to have approved this cost estimate overrun from the outset.

8.5 If the customer unilaterally amends or terminates work commissioned to the agency without the agency's involvement, while the agency continues to provide ongoing support, the customer is required to compensate the agency for the services provided up to that point according to the fee agreement and to cover all costs incurred. If the termination is not based on gross negligence or willful misconduct by the agency, the customer is further obliged to pay the entire fee (commission) agreed for this order, with no credit compensation under § 1168 AGBG. Furthermore, the customer must indemnify the agency regarding any claims by third parties, particularly contractors of the agency. Upon payment of the fee, the customer acquires no usage rights to work already performed; unrealized concepts, drafts, and other documents must be returned to the agency immediately.


9.Payment, Retention of Ownership
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9.1 The fee is immediately due for payment upon receipt of the invoice, without deductions, unless special payment terms are agreed upon in writing in individual cases. This also applies to the pass-through of all cash expenses and other expenditures. The goods delivered by the agency remain the property of the agency until full payment of the fee, including all related obligations.

9.2 In the event of customer payment default, statutory default interest applies at the rate applicable to commercial transactions. Furthermore, the customer commits, in case of payment default, to reimburse the agency for the incurred reminder and collection costs, to the extent necessary for an appropriate legal pursuit. This includes at least the costs of two reminder letters at the customary market rate, currently at least € 20.00 per reminder, as well as the cost of a letter from a lawyer commissioned with the collection. This does not affect the assertion of further rights and claims.

9.3 In case of customer payment default, the agency can make immediately due all services and partial services provided under 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 the fee remains unaffected.

9.5 If payment is agreed to be in installments, the agency reserves the right to demand immediate payment of the entire outstanding debt (forfeiture) in case of non-timely payment of installments or ancillary claims.

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


10. Ownership Rights and Copyright
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10.1 All services provided by the agency, including those from presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, finished artwork, concepts, negatives, slides), as well as individual components thereof, remain the property of the agency, as do individual workpieces and design originals. These can be reclaimed by the agency at any time, especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to 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 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 time, such use is based on a revocable loan agreement.

10.2 Changes or alterations to the agency's services, especially their further development by the customer or third parties acting on behalf of the customer, are only permissible with the express consent of the agency and, in the case of copyright-protected services, the author. The issuance of all so-called "open files" is explicitly not part of the contract. The agency is not obligated to release them. This means that the client has no legal claim to them without a contractual transfer of usage rights, even for "electronic works."

10.3 For the use of the agency's services beyond the originally agreed purpose and scope of use, irrespective of whether the service is copyright-protected, the consent of the agency is required. The agency and the author are entitled to a separate, reasonable fee 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 consent of the agency is also required after the agency contract has ended, irrespective of whether this service is copyright-protected or not.

10.5 For uses as per paragraph 4, the agency is entitled to the full agency fee agreed upon in the expired contract during the first year after the contract ends. In the second and third years after the contract ends, only half and one quarter, respectively, of the agreed fee are payable. No agency fee is payable from the fourth year after the contract ends.

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


11. Labeling
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11.1 The agency is entitled to indicate its name and, if applicable, the author on all advertising materials and in all advertising measures without the customer having any claim to compensation.

11.2 The agency is authorized to, unless the customer's written revocation is issued at any time, reference the existing or former business relationship with the customer by name and company logo on its own promotional media, particularly on its website (reference note).


12. Warranty
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12.1 The customer must immediately report any defects, in any case within eight days after delivery/performance by the agency, and, in the case of hidden defects, within eight days of their discovery, in writing with a description of the defect. Otherwise, any deviation in performance is deemed approved. In this case, asserting warranty and compensation claims and the right to rescission due to defects are excluded.

12.2 In the event of a valid and timely notice of defects, the customer is entitled to the right to improvement or replacement of the delivery/service by the agency. The agency will rectify the defects within a reasonable period, provided that the customer enables all necessary measures for inspection and defect correction. The agency is entitled to refuse rectification if it is impossible or entails a disproportionately high effort for the agency. In this case, the customer has the statutory rights of conversion or reduction. In the case of rectification, it is the customer's responsibility to arrange for the return of the defective (physical) item at their own expense.

12.3 The customer is also responsible for checking the legal, in particular, the compliance of the service with competition, trademark, copyright, and administrative law. The agency is only obligated to conduct a rough review of legal compliance. In cases where content is provided or approved by the customer, the agency is not liable for the legal compliance of such content in the event of slight negligence or after fulfilling any obligation to warn the customer.

12.4 The warranty period is six months from the delivery/performance date. The customer is not entitled to withhold payments due to defects. The presumption rule under § 924 AGBG is excluded.

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13. Liability and Product Liability
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13.1 In cases of slight negligence, the agency, its employees, contractors, or other agents ("persons") shall not be liable for property or financial damages suffered by the customer. This includes both direct and indirect damages, loss of profit, consequential damages, damages due to delay, impossibility, positive breach of duty, fault in contracting, as well as inadequate or incomplete performance. The injured party must prove the presence of gross negligence. To the extent that the agency's liability is excluded or limited, this also applies to the personal liability of its "persons."13.2 Any liability of the agency for claims brought against the customer based on services provided by the agency (e.g., advertising measures) is expressly excluded if the agency has fulfilled its duty to inform or such a duty was not recognizable for the agency, notwithstanding slight negligence. In particular, the agency is not liable for legal costs, the customer's legal expenses, the costs of publishing judgments, as well as any claims for damages or other claims by third parties; the customer must indemnify and hold the agency harmless in this regard.13.3 Claims for damages by the customer expire six months after the knowledge of the damage, but in any case, no later than three years from the wrongful act of the agency. The amount of compensation claims is limited to the net order value.


14. Applicable Law
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The contract and all mutually derived rights and obligations as well as claims between the agency and the customer are subject to Austrian substantive law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.


15. Place of Performance and Jurisdiction
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15.1 The place of performance is the agency's registered office. Risk passes to the customer upon delivery of the goods to the transportation company chosen by the agency.

15.2 The court having subject matter jurisdiction at the agency's registered office is agreed upon as the legal venue for all legal disputes arising between the agency and the customer in connection with this contractual relationship (The jurisdiction must be explicitly agreed upon in the contractual agreement with the customer). Regardless of this, the agency is entitled to sue the customer at their general place of jurisdiction.

15.3 Where the designations referring to natural persons in this contract are only listed in the male form, they apply equally to both men and women. When applying these designations to specific natural persons, the gender-specific form must be used.