Allgemeine Geschäftsbedingungen

.kloos KG
Lindengasse 2/13
1070 Vienna

Phone: +43 1 9478677
office@kloos.at
Email: office@kloos.at
Company registration number: : 491700p

  1. Validity, conclusion of contract

1.1 .kloos KG (hereinafter referred to as the „Agency“) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the agency and the customer, even if no explicit reference is made to them.

1.2 The version valid at the time of the conclusion of the contract shall be authoritative in each case. Deviations from these as well as 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 business of the customer, even if known, will not be accepted, unless expressly agreed otherwise in writing in individual cases. The agency expressly contradicts the customer’s general terms and conditions. No further objection to the customer’s GTC by the Agency is required.

1.4 The customer will be notified of any changes to the GTC and these will be deemed to have been agreed if the customer does not object to the changed GTC in writing within 14 days; the customer will be expressly informed of the significance of silence and of the concretely changed clauses in the notification. This fiction of consent does not apply to the change of essential service contents and fees.

1.5 Should individual provisions of these General Terms and Conditions of Business be invalid, this shall not affect the binding nature of the remaining provisions and of the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision which comes closest to the meaning and purpose of the invalid provision.

1.6 The Agency’s offers are subject to change and non-binding.

 

  1. Social media channels and Google Ads

The agency expressly points out to the customer before placing an order that the providers of „social media channels“ and „Google Ads“ (e.g. Facebook, Google, hereinafter referred to as „providers“) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Accordingly, the providers are not obliged to forward content and information to the users. There is therefore the risk, which cannot be calculated by the agency, that advertisements and appearances are removed without reason. In the case of a complaint from another user, the providers will grant the possibility of a counterstatement, but in this case, too, the contents will be removed immediately. In this case, the recovery of the original, lawful state may take some time. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer’s order on them. By placing an order, the customer expressly acknowledges that these terms of use (co-)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 simple possibility of each user to claim infringements of rights and thus to achieve removal of the content, the agency cannot guarantee that the commissioned campaign will be available at all times.

 

  1. Concept and idea protection

If the potential customer has already invited the agency in advance to create a concept, and if the agency complies with this invitation before the main contract is concluded, the following provision shall apply:

3.1 Already through the invitation and acceptance of the invitation by the Agency, the potential Client and the Agency enter into a contractual relationship („pitching contract“). This contract is also based on the GTC.

3.2 The potential Client acknowledges that the Agency shall provide cost-intensive preliminary services already at the concept development stage, although the Client has not yet assumed any obligations to perform.

3.3 The linguistic and graphic parts of the concept are protected by copyright law to the extent that they reach the height of the work. Potential clients are not permitted to use and edit these parts without the consent of the Agency, if only because of the copyright law.

3.4 The concept also contains ideas relevant to advertising that do not reach the level of a work and thus 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 marketing strategy. Therefore those elements of the concept are protected which are unique and give the marketing strategy its characteristic character. In particular, SEO strategies, advertising slogans, advertising texts, graphics and illustrations, advertising material, etc. are regarded as an idea in the sense of this agreement, even if they do not reach the height of a work.

3.5 The potential Client shall undertake to refrain from exploiting or having exploited or using or having used or having used or having used these creative advertising ideas presented by the Agency within the framework of the concept economically outside the corrective provisions of a main contract to be concluded at a later date.

3.6 If the potential Client is of the opinion that ideas have been presented to him by the Agency which he has 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 that allows for a chronological allocation.

3.7 In the contrary case, the contracting parties shall assume that the Agency has presented a new idea to the potential Client. If the idea is used by the Client, it is to be assumed that the Agency has earned merit in the process.

3.8 The potential customer may release himself from his obligations under this point by paying appropriate compensation plus 20% VAT. The exemption shall only become effective after the Agency has received full payment of the compensation.

 

  1. Scope of services, order processing and cooperation obligations of the customer

4.1 The scope of the services to be provided is set out in the service description in the Agency Contract or in any order confirmation by the Agency, as well as in any briefing minutes („Offer Documents“). Subsequent changes to the content of services require written confirmation by the Agency. The Agency shall be free to design the performance of the order within the framework specified by the Customer.

4.2 All services provided by the Agency shall be reviewed by the Client and approved by the Agency within five working days of receipt by the Client. After this period has expired without the Client having given any feedback, they shall be deemed to have been approved by the Client.

4.3 The Client shall provide the Agency in a timely and complete manner with all information and documents required for the provision of the service. The Client shall inform the Agency of all circumstances that are relevant to 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 is delayed by the agency as a result of incorrect, incomplete or subsequently changed information.

4.4 The customer is further obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, labelling rights or other rights of third parties (rights clearing) and guarantees that the documents are free of rights of third parties and can therefore be used for the intended purpose. The agency is not liable in the case of slight negligence or after fulfilling its duty to warn – at any rate in the internal relationship with the customer – for an infringement of such third-party rights by documents made available. 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 due to a claim by a third party, in particular the costs of appropriate legal representation. The customer undertakes to support the Agency in defending itself against any third-party claims. The customer shall provide the Agency with all documents for this purpose without being requested to do so.

 

  1. External services / commissioning of third parties

5.1 The Agency shall be entitled, at its own discretion, to carry out the service itself, to use competent third parties as vicarious agents in the provision of services covered by the contract and/or to substitute such services („external services“).

5.2 The assignment of third parties within the scope of an external service shall be carried out either in its own name or in the name of the customer, the latter after prior information to the customer. The Agency shall carefully select this third party and ensure that it has the necessary professional qualifications.

5.3 The Customer shall assume any obligations to third parties which have been made known to the Customer and which extend beyond the term of the contract. This also applies expressly in the event of termination of the agency contract for good cause.

 

  1. Dates

6.1 Unless expressly agreed upon as binding, stated delivery or performance periods shall only be approximate and non-binding. Binding date agreements shall be recorded in writing or confirmed in writing by the Agency.

6.2 If the Agency’s delivery/performance is delayed for reasons for which it is not responsible, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, the Agency’s performance obligations shall be suspended for the duration and to the extent of the obstacle and the deadlines shall be extended accordingly. If such delays last for more than two months, the customer and the agency are 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 and this grace period has expired without result. Claims for damages on the part of the Client for non-performance or delay shall be excluded, except in cases of proven intent or gross negligence.

 

  1. Premature termination

7.1 The Agency shall be entitled to dissolve the contract with immediate effect for important reasons. Good cause shall be deemed to exist in particular if

  1. 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
  2. b) the customer continues to violate essential obligations from this contract, such as payment of a due amount or cooperation obligations, despite a written warning with a grace period of 14 days.
  3. c) there are justified concerns regarding the creditworthiness of the customer and the customer does not make advance payments at the request of the agency or provide suitable security before the agency makes payment;

7.2 The customer is entitled to terminate the contract for important reasons 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 written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.

  1. Fee

8.1 Unless otherwise agreed, the Agency’s claim for remuneration for each individual service shall arise as soon as the service has been provided. The Agency shall be entitled to demand advances to cover its expenses. From an order volume with an (annual) budget of € 10,000 or more, or those that extend over a longer period of time, the Agency shall be entitled to issue interim invoices or advance invoices or to call up payments on account.

8.2 The fee is understood to be a net fee plus the statutory value added tax. In the absence of an agreement in individual cases, the Agency shall be entitled to a fee in the customary market amount for the services rendered and the transfer of the 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 Cost estimates by the Agency are not binding. If it can be foreseen that the actual costs will exceed the costs estimated by the Agency in writing by more than 15%, the Agency shall inform the Customer of the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three working days of such notification and at the same time announces more cost-effective alternatives. If the costs are exceeded by up to 15 %, a separate notification is not necessary. This cost overrun is considered approved by the customer from the outset.

8.5 If the Client unilaterally alters or cancels work commissioned without involving the Agency – without prejudice to other ongoing support provided by the Agency – he shall compensate the Agency for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the interruption is not due to a grossly negligent or intentional breach of duty on the part of the Agency, the customer shall also reimburse the Agency for the entire fee (commission) agreed for this assignment, whereby the crediting remuneration of § 1168 AGBG is excluded. Furthermore, the Agency shall be indemnified and held harmless in respect of any claims by third parties, in particular by the Agency’s contractors. With the payment of the fee, the customer does not acquire any rights of use for work already performed; rather, concepts, drafts and other documents that have not been executed shall be returned to the Agency immediately.

 

  1. 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 are agreed in writing in individual cases. This also applies to the further charging of all cash and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all subsidiary liabilities.

9.2 If the customer is in default of payment, the 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 charges incurred, insofar as these are necessary for appropriate legal prosecution. This includes in any case the costs of two reminders in the usual market amount of currently at least € 20.00 per reminder as well as a reminder from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.

9.3 In the event of default of payment by the Client, the Agency may declare all services and partial services rendered under other contracts concluded with the Client to be due for immediate payment.

9.4 Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been paid (right of retention). This shall not affect the obligation to pay fees.

9.5 If payment by instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that instalments or subsidiary claims are not paid on time (loss of deadline).

9.6 The Client shall not be entitled to set off his own claims against claims of the Agency, unless the Client’s claim has been acknowledged by the Agency in writing or has been determined by a court of law.

 

  1. Property right and copyright

10.1 All services provided by the Agency, including those arising from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, remain the property of the Agency, as do the individual workpieces and design originals, and may be reclaimed by the Agency at any time, particularly upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation rights to services of the Agency shall in any case be subject to full payment of the fees charged by the Agency for such services. If the customer already uses the services of the agency before this time, this use is based on a loan relationship that can be revoked at any time.

10.2 Changes or modifications to services provided by the Agency, such as in particular their further development by the Client or by third parties working for the Client, are only permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author. The surrender of all so-called „open files“ is thus expressly not part of the contract.  The agency is not obliged to hand over the files. This means that without contractual assignment of the rights of use, even for „electronic works“, the client has no legal claim to them.

10.3 For the use of services provided by the Agency that go beyond the originally agreed purpose and scope of use, the consent of the Agency is required, regardless of whether this service is protected by copyright. The Agency and the originator shall be entitled to separate, appropriate remuneration for this.

10.4 For the use of services provided by the Agency or of advertising material for which the Agency has prepared conceptual or design templates, the consent of the Agency is also required after expiry of the Agency contract, irrespective of whether or not this service is protected by copyright.

10.5 For uses in accordance with para. 4, the Agency shall be entitled to the full Agency remuneration agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after the end 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 is to be paid.

10.6 The Client shall be liable to the Agency for any unlawful use to twice the amount of the fee appropriate for such use.

 

  1. Marking

11.1 The Agency shall be entitled to refer to the Agency and, if applicable, the originator on all advertising materials and in all advertising measures, without the Client being entitled to a fee for this.

11.2 Subject to the Client’s written revocation, which is possible at any time, the Agency shall be entitled to refer to the existing or former business relationship with the Client on its own advertising media and in particular on its Internet website with its name and company logo (reference notice).

 

  1. Warranty

12.1 The Client shall notify the Agency of any defects without delay, and in any event within eight days of delivery/service by the Agency, and of hidden defects within eight days of their discovery, in writing, describing the defect; otherwise the service shall be deemed to have been 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 Client shall be entitled to have the delivery/service improved or replaced by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the Client shall enable the Agency to take all measures necessary for investigation and remedy of the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high expense 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 customer shall be responsible for the transfer of the defective (physical) item at his own expense.

12.3 It is also incumbent on the client to check the performance for its legal, in particular competition, trademark, copyright and administrative law admissibility. The agency is only obliged to carry out a rough check of the legal admissibility. The agency is not liable for the legal admissibility of content in the case of slight negligence or after fulfilling any duty to warn the client, if the content was specified or approved by the client.

12.4 The Agency shall carry out all measures to improve search engine findability in accordance with the current state of the art and to the best of its knowledge and belief, based on Google’s guidelines and years of experience. A certain placement of a website at Google cannot be seriously guaranteed, however. It is therefore stated that the agency does not owe the customer any concrete success regarding positions in the organic search field at Google.

12.5 The warranty period shall be six months from delivery/performance. The right of recourse against the Agency pursuant to § 933b para. 1 AGBG expires one year after delivery/performance. The Client shall not be entitled to withhold payments due to complaints. The presumption regulation of § 924 AGBG is excluded.

 

  1. 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 of the Client shall be excluded, regardless of whether such damage is direct or indirect, 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. As far as the liability of the agency is excluded or limited, this also applies to the personal liability of its „people“.

13.2 Any liability on the part of the Agency for claims made against the Client on the basis of the services provided by the Agency (e.g. advertising measures) is expressly excluded if the Agency has fulfilled its obligation to provide information or if such information was not recognisable to it, whereby slight negligence shall not be prejudicial. In particular, the Agency shall not be liable for legal costs, the Client’s own legal fees or costs of publication of judgements or for any claims for damages or other claims by third parties; the Client shall indemnify and hold the Agency harmless in this respect.

13.3 The Client’s claims for damages shall expire six months after the Client becomes aware of the damage; in any event, however, after three years from the Agency’s act of infringement. Claims for damages shall be limited in amount to the net order value.

  1. Applicable law

The contract and all mutual rights and obligations as well as claims between the agency and the customer derived from it are subject to Austrian substantive law, excluding its referral norms and excluding the UN Convention on Contracts for the International Sale of Goods.

 

  1. Place of performance and jurisdiction

15.1 The place of performance is the Agency’s registered office.

15.2 The place of jurisdiction for all legal disputes arising between the Agency and the Client in connection with this contractual relationship shall be the court that is competent for the Agency’s registered office. Irrespective of this, the Agency shall be entitled to sue the Client at its general place of jurisdiction.

15.3 Insofar as terms referring to natural persons are only used in the masculine form in this contract, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.

 

Declarations of consent

The customer agrees that his personal data, namely name/company, profession, date of birth, company registration 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, for the purpose of customer care as well as 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 former business relationship with the customer (reference reference), be determined, stored and processed automatically.

The client agrees that electronic mail may be sent to him for advertising purposes until further notice.

This consent can be revoked at any time in writing by e-mail to office@kloos.at.

 

Privacy policy according to articles 13 and 14 DSGVO

We process your personal data, which fall under the following data categories:

  • Name/Company,
  • Profession,
  • Date of birth,
  • Company registration number,
  • powers of representation,
  • Contact person,
  • Business address and other addresses of the customer,
  • Phone number, fax number, e-mail address,
  • Bank details, credit card details,
  • UID number,

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 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 former business relationship with the customer (reference reference).

You can revoke this consent at any time. A revocation has the consequence that we will no longer process your data for the above-mentioned purposes from this point on. Please contact us for a revocation: Thomas Kloos, office@kloos.at

The data provided by you is also required for the fulfilment of the contract or for the implementation of pre-contractual measures. Without this data we cannot conclude the contract with you.

For this data processing we use contract processors.

We pass on your data to the following recipients or categories of recipients: freelancers with whom we work together within the framework of the project.

Your data will also be processed, at least in part, outside the EU or EEA, namely in the USA. The appropriate level of protection results from an adequacy decision of the European Commission according to Art 45 DSGVO.

 

You can reach us at the following contact details:

.kloos KGLindengasse
2/131070
ViennaPhone
: +43 1 9478677Email
: office@kloos.at

You can reach our data protection officer at

Thomas KloosLindengasse
2/131070
ViennaPhone
: +43 1 9478677Email
: office@kloos.at

Instruction on legal remedies

You are basically entitled to the rights of information, correction, deletion, restriction, data transferability and objection. Please contact us for this purpose. If you believe that the processing of your data violates data protection law or your data protection rights have otherwise been violated in any way, you can complain to the supervisory authority. In Austria, the data protection authority is responsible.