Terms and Conditions of LX media GmbH
1. GENERAL
1.1. These General Terms and Conditions ("GTC") apply to all business relationships between LX media GmbH ("Agency") and its customers, provided that the customers are entrepreneurs or a legal entity under public law.
1.2. Offers, deliveries, and services of the agency are made exclusively on the basis of these terms and conditions. By placing an initial order, the terms and conditions are considered accepted. The terms and conditions also apply to all future business relationships with the customer. The version valid at the time of contract conclusion is always decisive.
1.3. Contradictory, deviating, or supplementary general terms and conditions of the customer shall not apply, even if the agency does not expressly object to their validity. Individual agreements with the customer take precedence over these terms and conditions. The decisive factor for such agreements is a contract or a written confirmation of the content by the agency.
1.4. The offers of the agency are non-binding and subject to change.
2. Scope of Services
2.1. The scope of services to be provided is determined by the service description in the offer or any order confirmation by the agency as well as the possible briefing protocol ("offer documents"). The service description must be checked by the customer for accuracy and completeness. For services involving individual customizations/change requests by the customer, the agency will provide a separate offer for these.
2.2. The client shall provide the agency with all information, content, and documents in a suitable form that are necessary for the provision of the delivery/service in a timely and complete manner ("documents"). The agency is not obligated to verify the accuracy and completeness of the documents. The client shall inform the agency of all circumstances that are relevant for the execution of the order, even if they only become known during the execution. The client shall bear the costs for all expenses, especially for delays or repetitions, incurred by the agency due to incorrect, incomplete, delayed, or subsequently modified information/documents provided by the client.
2.3. The customer is obligated to check the documents provided by him for the execution of the order for any copyright, trademark, or other rights of third parties and guarantees that the documents are free from third-party rights.
3. COMMISSIONING OF THIRD PARTIES
3.1. The agency is entitled, at its own discretion, to perform the service itself, to use agents for performance, and/or to substitute services ("third-party services").
3.2. The customer shall assume obligations towards third parties that extend beyond the contract term between the customer and the agency, even in the event of termination of the contract for good cause.
4. TERMINATION / FORCE MAJEURE
4.1. Specified delivery or performance deadlines are only approximate and non-binding, unless expressly agreed upon as binding. Binding deadlines must be agreed upon in writing or confirmed in writing by the agency.
4.2. Delivery and/or performance deadlines can only be met if the customer provides all documents in a timely and complete manner and fulfills their obligation to cooperate (in particular, but not exclusively, by releasing the documents in accordance with clause 9.1) to the necessary extent. Delivery or performance delays resulting from incorrect, incomplete, late, or subsequently modified information/documents provided by the customer are not the responsibility of the agency and do not lead to the agency being in default.
4.3. If the delivery/performance of the agency is delayed for reasons beyond its control, such as force majeure events and other unforeseeable events that cannot be averted with reasonable means, the obligations to perform shall be suspended for the duration of the impediment and the deadlines shall be extended accordingly. If such delays persist for more than two months, the customer and the agency are entitled to withdraw from the contract.
At the earliest two weeks after the expiration of the non-binding delivery or performance deadline, the customer can request the agency to deliver/performance.
5. Prices
5.1. All prices are in Euro and are subject to the applicable value-added tax (currently 20%).
5.2. Deliveries and services will be invoiced based on an hourly rate. Price adjustments can be made by the agency annually.
5.3. All services of the agency that are not explicitly covered by the agreed price will be remunerated separately. All cash expenses incurred by the agency are to be reimbursed by the customer.
5.4. Cost estimates provided by the agency are non-binding. If it is foreseeable that the actual costs will exceed the costs estimated in writing by the agency by more than 15%, the agency will inform the customer of the higher costs. The customer is required to approve the cost overrun within a reasonable period. If the cost overrun is up to 15%, separate notification is not necessary. This cost estimate overrun is considered approved by the customer.
6. Payment
6.1. If nothing else has been agreed, the agency's entitlement to remuneration arises for each individual service as soon as it has been provided.
6.2. The agency is entitled to request advances to cover its expenses, to prepare interim invoices (especially for an assignment that extends over a longer period of time), or to request advance payments.
6.3. The invoices issued by the agency are due for immediate payment upon receipt of the invoice and without deduction. This also applies to the reimbursement of all cash expenses and other costs.
6.4. The customer is not entitled to withhold payments due to incomplete total delivery or service or warranty claims.
The customer is not entitled to set off their own claims against claims of the agency, unless the customer's claim has been acknowledged in writing by the agency or has been judicially determined.
In case of customer's payment default, the agency can demand immediate payment for all services and partial services provided, even within the scope of other contracts concluded with the customer. The agency is not obligated to provide further services until the outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected.
If installment payments have been agreed upon, the agency reserves the right in case of non-timely payment of installments or ancillary claims to demand immediate payment of the entire remaining debt (loss of term).
7. PROPERTY RIGHTS AND COPYRIGHT
7.1. The agency reserves all rights and uses to the documents created by it (in particular preliminary drafts, concepts, etc.) and services (in particular those from presentations, suggestions, ideas, sketches, preliminary drafts, drawings, concepts, conceptual or design templates e.g. for advertising materials and also individual parts thereof), and can - especially upon termination of the contractual relationship - demand the return of all documents.
7.2. Any use of the documents and/or services or parts thereof, such as modification, use, reproduction, publication, distribution, provision, and any editing, in particular their further development by the customer or by third parties acting on their behalf, is only permitted with the written consent of the agency.
The customer acquires the non-exclusive right to use for the agreed purpose by making full payment of the fee. If the customer already uses the services of the agency with the written consent of the agency before this point, this use is based on a revocable loan relationship.
7.4. For the use of services or documents of the agency that goes beyond the originally agreed purpose and/or scope of use, written consent from the agency is required, regardless of whether this service is protected by copyright, and a separate appropriate fee must be paid.
The client shall be liable to the agency for any unauthorized use in double the amount of the appropriate fee for such use.
8. Concept and Idea Protection / Reservation of Rights
8.1. If the potential customer has agreed with the agency on the creation of a concept, the following applies:
By agreeing to create a concept, the potential client and the agency enter into a contractual relationship ("pitching contract"). These terms and conditions also apply to this contract.
The potential client acknowledges that the agency is already providing cost-intensive preliminary services with the development of the concept. It is expressly agreed that the potential client will pay a pitch fee to the agency.
8.4. All documents created as part of the concept (such as plans, samples, or designs), services, advertising elements, and marketing strategies (such as advertising slogans, ad copy, graphics, illustrations, or advertising materials) are subject to clause 8 by analogy, and compliance must be ensured by potential customers.
8.5. If the potential client has been informed by the agency of ideas that were already known to him before the presentation, he must inform the agency within 14 days after the date of disclosure by email, citing evidence allowing for a chronological assignment. Otherwise, it is considered a new idea for the potential client, which was disclosed to him by the agency.
9. Warranty
9.1. Agency documents, such as all plans, samples, concepts, preliminary drafts, sketches, drawings, and electronic files, are to be reviewed by the client and approved by them within a reasonable timeframe.
9.2. The times in which services should be available in the form of campaigns are to be considered as approximate, and different times or times when accessing the campaign is not possible do not constitute a defect.
9.3. The customer must report any defects immediately, in any case within eight days after delivery/performance by the agency, hidden defects within eight days after their discovery, in writing describing the defect; otherwise, the delivery/performance is deemed free of defects. In this case, the assertion of warranty and damages claims as well as the right to contest a mistake due to defects are excluded.
In the event of a justified and timely complaint about defects, the agency may, at its own discretion, remedy the defect within a reasonable period of time or deliver a defect-free item. The customer shall enable the agency to take all necessary measures for inspection and rectification of defects.
9.5. Warranty claims are excluded in case of defects, errors, malfunctions, and damages resulting from improper operation by the customer, processing of the delivery/service by the customer or third parties commissioned by the customer without the agency's consent, improper repair by the customer or third parties without the agency's consent, or unsuitable technical conditions of the customer. Warranty claims are also excluded in case of incompatibility of the delivery/service with other programs of the customer that are not part of the contract.
9.6. If a third party asserts claims due to the infringement of its intellectual property rights, the Agency may, at its own expense, modify the delivery/service, replace it, or acquire a right to use it.
9.7. Fault diagnoses and/or fault and malfunction repairs caused by the customer will be carried out by the agency and invoiced to the customer.
9.8. The warranty period is 12 months from delivery/performance.
10. LIABILITY
10.1. The agency shall be liable for defects in its deliveries/services in accordance with the statutory provisions for positive damages. Liability for loss of profit, direct or indirect damages, consequential damages, damages from computer viruses, damages due to delay, impossibility or due to defective or incomplete performance is expressly excluded.
10.2. The agency shall only be liable for gross negligence and intent.
10.3. The agency is not responsible for the documents provided or specified by the client. In particular, the agency is not obligated to review the content for possible legal violations. If third parties hold the provider accountable for potential legal violations resulting from the client's documents, the client undertakes to indemnify the agency and reimburse any costs arising from the potential legal infringement. The client will support the agency in defending against any claims from third parties and will provide all documents necessary for this purpose without being prompted.
10.4. In case of gross negligence, the agency is liable for damages up to an amount equivalent to 100% of the annual remuneration per damage event. The term "annual remuneration" includes all remunerations to which the agency has become entitled within a period of 12 months prior to the occurrence of the damage event in accordance with the provisions of this contract. In total, the agency's liability for all damages caused by gross negligence within a calendar year is limited to an amount equivalent to 200% of the annual remuneration.
10.5. The liability of the agency for intent as well as under the Product Liability Act remains unaffected by the above provisions. Furthermore, the above liability limitations do not apply in case of injury to life, body, and health.
10.6. Customer's claims for damages expire 12 months after becoming aware of the damage; in any case, after three years from the agency's act of infringement.
11. EARLY TERMINATION
11.1. The agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular when
11.2. the performance of the service becomes impossible due to reasons attributable to the customer, or is further delayed despite setting a grace period of 14 days;
11.3. the customer continues to violate essential obligations under this contract, such as payment of a due amount or cooperation duties, despite a written warning with a deadline of 14 days.
11.4. justified concerns exist regarding the customer's creditworthiness and if, upon request by the agency, the customer neither makes advance payments nor provides adequate security before the agency's service is rendered.
11.5. If the agency is in default, the client can only withdraw from the contract after having set the agency a written reasonable grace period of at least 14 days, which has expired without result.
11.6. Concepts, designs, and other documents must be promptly returned to the agency after termination of the contract.
If the agency is entitled to withdraw from the contract or if the customer withdraws without justification, the agency's claim to the full agreed fee remains valid.
12. Data Protection and Confidentiality
The agency undertakes to process all personal data received from the customer or provided by them, or derived from this data, in accordance with all applicable data protection laws.
12.2. The agency and the client have and will disclose to each other business and trade secrets as well as other confidential information in oral and/or written form. The agency and the client hereby commit to strictly keep confidential all confidential information received from each other, not to disclose it to third parties, and not to use it for their own or third-party purposes.
12.3. The agency and the client undertake to only disclose confidential information of the other party to those employees who require it for the purposes of collaboration, and to obligate these employees to maintain confidentiality to the same extent, even after the termination of the employment relationship.
12.4. The above obligations also apply to the period after the termination of the cooperation between the agency and the client. The agency and the client undertake to return all documents promptly after the termination of the cooperation, as well as at any time upon request of the other party, and to destroy all copies (in paper or electronic form) in their possession.
13. SPECIAL PROVISIONS
If included in the scope of services: Providers of "social media channels" ( "Providers") such as Facebook reserve the right in their terms of use, among other things, to reject or remove advertisements and appearances for any reason. The agency is obliged to comply with the terms of use of the respective providers and also bases the client's order on them. The client undertakes to comply with the terms of use of the respective provider (available online on the provider's platform). Due to the currently valid terms of use, it is possible for any other user to claim legal violations and thus achieve the removal of the respective content. In the event of a complaint from another user, the content will be immediately removed. The restoration of the original state may take longer in this case.
13.2. The agency is entitled to indicate the agency on all advertising materials and in all advertising measures created for the client by the agency, without the client being entitled to any remuneration for this. The agency is entitled to refer to the existing or former business relationship with the client (reference notice) on its own advertising media and especially on its website with the name and company logo.
14. FINAL PROVISIONS
14.1. The contract and all mutually derived rights, obligations, and claims between the agency and the client are subject to Austrian law, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
14.2. The place of jurisdiction for all legal disputes arising between the agency and the customer shall be the court having jurisdiction over the agency's registered office. Nevertheless, the agency is entitled to sue the customer at his general place of jurisdiction.
Should individual provisions of these General Terms and Conditions be or become 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 provision that comes closest to its meaning and purpose.
14.4. Deviation from these terms and conditions as well as any other supplementary agreements with the customer are only valid if confirmed in writing by the agency. This also applies to deviating from the written form requirement.
