Terms & Conditions
of LX media GmbH
1. GENERAL TERMS
1.1. These General Terms and Conditions (“GTC”) govern the business relations between LX media GmbH (“Agency”) and its clients, where the clients are business owners or legal entities under public law.
1.2. All offers, work and services of the Agency are carried out on the basis of these GTC. These GTC are deemed accepted upon placement of the client’s first order. The GTC are also applicable to all future business relations with the client. The version of the GTC in force at the time of conclusion of the contract is authoritative.
1.3. Any of the client’s general terms and conditions in conflict with, in derogation of, or complementing these GTC are not applicable, even in the event that the Agency does not expressly contest their applicability. Individual agreements made with the client prevail over these GTC. For such agreements to be effective, a contract or written confirmation by the Agency of the subject matter is required.
1.4. Offers made by the Agency are subject to change and non-binding.
2. SCOPE OF SERVICES
2.1. The scope of the services to be provided is based on the specifications set out in the offer or order confirmation issued by the Agency as well as the minutes of the briefing (“offer documents”). The client must review the specifications as to their accuracy and completeness. In case of services relating to individual adjustments / change requests from the client, the Agency will submit a separate offer to the client.
2.2. The client will provide the Agency with all information, content and documents that are necessary for the performance of the work/service (“documents”) in a timely manner and in a suitable form. The Agency is not obliged to review the documents as to their accuracy and completeness. The client will notify the Agency of any and all circumstances that are relevant to the performance of the contract, even if such circumstances only become evident during the course of performance of the contract. The client bears the costs for all expenses and efforts resulting in particular from delays incurred by the Agency or from work having to be redone owing to incorrect, incomplete, delayed or subsequently altered information/documents provided by the client.
2.3. The client is obliged to review the documents provided to the Agency for performance of the contract with regard to any copyrights, trademark rights or other third-party rights, and guarantees that the documents are free from third-party rights.
3. CONTRACTING THIRD PARTIES
3.1. The Agency has the right to perform the service itself, to use vicarious agents and/or to engage third parties (“external service”) at its own discretion.
3.2. In the case of obligations to third parties that extend beyond the term of the contract between the client and the Agency, the client must accept such obligations. This also applies in the event of termination of the contract for good cause.
4. DEADLINES / FORCE MAJEURE
4.1. Any delivery or performance deadlines are approximate and non-binding, unless expressly agreed to be binding. Binding deadlines must be agreed in writing or be confirmed by the Agency in writing.
4.2. Delivery and/or performance deadlines can only be met if the client has provided all documents in a timely manner and fulfils their obligation to cooperate (such as, in particular, but not exclusively, the release of the documents in accordance with Section 9.1) to the extent necessary. The Agency is not accountable for any delays in delivery or performance caused by incorrect, incomplete, delayed or subsequently amended information/documents provided by the client, and such delays do not constitute default on the part of the Agency.
4.3. Should the Agency’s work/performance be delayed due to reasons for which the Agency cannot be held accountable, e.g. force majeure and other unforeseeable events that cannot be averted through any reasonable means, the performance obligations are suspended for the duration of the hindrance, and the deadlines extended correspondingly. Should the duration of such hindrance exceed a period of two months, the client and the Agency have the right to withdraw from the contract.
4.4. The client may demand delivery of the work/performance from the Agency no sooner than two weeks after expiry of the non-binding delivery or performance deadline.
5. PRICING
5.1. All prices are quoted in Euros and without the applicable value added tax (currently 20%).
5.2. Hourly rates are charged for work and services. The Agency may make price adjustments once a year.
5.3. Any work performed by the Agency that is not expressly covered by the agreed price is to be paid separately. The client must reimburse the Agency for any cash expenses incurred.
5.4. The Agency’s cost estimates are not binding. Should the Agency anticipate that the actual costs will exceed the written cost estimate by more than 15%, the Agency must inform the client of the cost increase. The client must approve the cost overrun within a reasonable time. The Agency is not required to notify the client if the cost overrun is less than 15%; this overrun is deemed approved by the client.
6. PAYMENT
6.1. Unless otherwise agreed, the Agency’s claim to remuneration for each individual service arises as soon as it is performed.
6.2. The Agency is entitled to demand advance payments to cover its expenses, to issue interim invoices (in particular, in case of an order that extends over a prolonged period of time) or advance invoices, or to call up payments on account.
6.3. The invoices issued by the Agency are immediately payable upon receipt and must be paid without deduction. This also applies to any and all cash expenses and other charges that are passed onto the client.
6.4. The client is not entitled to withhold payments on the grounds of incomplete overall work or service or warranty claims.
6.5. The client is not entitled to set off their own claims against the claims of the Agency, unless the client’s claim was previously acknowledged by the Agency in writing or determined by a court.
6.6. In the event of a default in payment on the part of the client, the Agency has the right to declare all services and partial services provided, including those under other contracts concluded with the client, immediately payable. The Agency is not obliged to perform any more services until such time as the client has paid the outstanding amount in full (right of retention). The obligation to pay the fee remains unaffected thereby.
6.7. If payment in instalments was agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (default in payment).
7. INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
7.1. The Agency reserves all rights and types of utilisation of the documents put together by it (in particular, preliminary drafts, concepts, etc.) and services (in particular, those from presentations, proposals, ideas, sketches, preliminary drafts, drawings, concepts, conceptual or design templates e.g. for advertising materials and also parts thereof), and can – in particular, upon termination of the contractual relationship – demand that all documents be returned.
7.2. Any use of the documents and/or services or parts thereof, such as, in particular, modification, use, reproduction, publication, dissemination or making available and any processing, such as, in particular, their further development by the client or by third parties working for the client, are only permitted with the Agency’s written consent.
7.3. Upon payment of the full amount, the client acquires the non-exclusive right of use for the agreed purpose. Should the client already use the services of the Agency with the Agency’s written consent, this use constitutes a loan that may be revoked at any time.
7.4. The written consent of the Agency is required for any use of services or documents of the Agency that extends beyond the originally agreed purpose and/or scope of use – regardless of whether this service is protected by copyright – and a separate, appropriate remuneration must be paid.
7.5. The client is liable to the Agency for any unlawful use in the amount of double the appropriate fee for such use.
8. PROTECTION OF CONCEPTS AND IDEAS / RESERVATION OF RIGHTS
8.1. The following provisions apply if the potential client and the Agency agreed that a concept would be developed:
8.2. As soon as the potential client and the Agency agree on the development of a concept, they are already in a contractual relationship with 1.1. one another (“pitching agreement”). This agreement is also governed by these GTC.
8.3. The potential client acknowledges that, by developing the concept, the Agency is already performing cost-intensive preliminary work. It is expressly agreed that the potential client pays the Agency a pitching fee.
8.4. Section 8 applies analogously to all files (such as, in particular, plans, samples, drafts), services, advertising-relevant elements and marketing strategies (such as, in particular, slogans, advertising copy, graphics, illustrations or advertising materials) generated in the course of developing the concept, and the potential clients must ensure compliance therewith.
8.5. Should the Agency present to the potential client ideas that were already known to the client before the presentation, the client must inform the Agency of this by email no later than 14 days after the day of the presentation, submitting evidence that makes it possible to determine the timeline for the ideas and the knowledge thereof. Otherwise, it is assumed that the Agency presented an idea to the potential client that was new to the client.
9. WARRANTY
9.1. Documents provided by the Agency, such as, in particular, plans, samples, concepts, drafts, sketches, drawings and electronic files must be checked by the clients and released within a reasonable time.
9.2. The times during which work in the form of campaigns should be made available are to be regarded as approximate, and deviations or times in which the campaign is not available do not constitute a defect.
9.3. The client is obliged to notify the Agency without delay, however, no later than eight days upon delivery of the work/performance by the Agency, of any defects in writing and including a description of the defect; in the case of hidden defects, within eight days of their becoming apparent. Failure to do so constitutes acceptance of the work provided. In such case, the assertion of warranty claims or claims for damages and the right to avoidance on the ground of error are inadmissible.
9.4. If a defect is reported within the period stipulated and with good cause, the client is entitled to rectification or replacement of the work delivered / performance by the Agency, at the Agency’s discretion. The client provides the Agency 1.1. with all resources and materials necessary for inspecting and rectifying the defect.
9.5. The rights under the warranty are excluded in the case of defects, errors, malfunctions and damage resulting from improper handling on the part of the client, processing of the work/performance by the client or third parties engaged by the client without the Agency’s approval, improper repair work carried out by the client or third parties engaged by the client without the Agency’s approval, or unsuitable technical conditions on the client’s side. The rights under the warranty are excluded in the case of incompatibility of the work/performance with other programs used by the client that are not the subject of the agreement.
9.6. If a third party asserts any claims based on the infringement of its industrial and intellectual property rights, the Agency may change or replace the work delivered / performance at its own expense or acquire a right of use.
9.7. In the case of defects, errors or malfunctions caused by the client, the Agency will perform error diagnoses and/or rectify the problem and charge this work to the client’s account.
9.8. The warranty period is 12 months following delivery of the work / performance.
10. LIABILITY
10.1. In the case of defective work/services, the Agency is liable for actual losses (damnum emergens) as provided in the statutory provisions. Liability for loss of profit, direct or indirect damage, consequential harm caused by a defect, loss caused by computer viruses, delay, impossibility, or inadequate or incomplete performance is expressly excluded.
10.2. The Agency is only liable in instances of gross negligence or intent.
10.3. The Agency is not responsible for the documents provided or specified by the client. In particular, the Agency is not obliged to examine the content as to potential statutory violations. In the event that a third party makes a claim against the Agency for any infringement of rights resulting from the client’s documents, the client undertakes to indemnify the Agency from any liability and to reimburse the Agency for any costs arising from the alleged infringement of rights. The client will support the Agency in defending itself against any third-party claims and provide all documents without being specifically requested to do so.
10.4. In case of gross negligence, the Agency is liable for damages amounting to no more than 100% of the annual remuneration in each case. The term “annual remuneration” encompasses all compensations to which the Agency became entitled within the space of the 12 months prior to the occurrence of damage in accordance with the provisions within this contract. Overall, the Agency’s liability for all forms of damage caused by gross negligence in the course of one calendar year is limited to 200% of the annual remuneration.
10.5. The Agency’s liability for intent as well as liability in accordance with the Austrian Federal Product Liability Act (Produkthaftungsgesetz) remain unaffected by the aforementioned provisions. Further, the above limitations of liability are not applicable in case of injury to life, limb or health.
10.6. Any claims for damages by the client expire 12 months after the client becomes aware of the damage; or, at the latest, three years after the Agency’s act of infringement.
11. EARLY TERMINATION
11.1. The Agency has the right to terminate the contract for good cause with immediate effect. The following, in particular, constitute good cause:
11.2. if the performance of the service becomes impossible for reasons for which the client can be held accountable, or is further delayed despite a grace period of 14 days;
11.3. if the client continually violates material obligations under this contract, such as payment of an amount that has been called due and payable or the duty to cooperate, despite written warnings and a grace period of 14 days;
11.4. if the Agency has reasonable concerns regarding the client’s creditworthiness, and the client does not make the advance payments requested by the Agency nor provide suitable security prior to the Agency’s performance.
11.5. If the Agency is in default, the client may only withdraw from the contract after having set a reasonable grace period of no less than 14 days in writing, and the grace period expires without a positive resolution.
11.6. Concepts, drafts and other documents must be returned to the Agency immediately upon termination of the contract.
11.7. Insofar as the Agency is entitled to withdraw from the contract or the client withdraws from the contract without good cause, the Agency’s claim to the full fee agreed remains applicable.
12. SPECIAL PROVISIONS
12.1. If included in the scope of services: In their terms of use, the providers of “social media channels” (“Providers”), e.g. Facebook, reserve the right, among other things, to reject or remove advertisements and advertising campaigns for any reason. The Agency is obliged to comply with the terms of use of the Providers in question and also regards them as underlying to the contract with the client. The client agrees to comply with the terms of use of the Provider in question (available online on the platform of the respective Provider). Under the currently applicable terms of use, any other user can claim that the law has been violated and achieve the removal of content. In the event of a complaint from another user, the content in question is removed immediately. Having content restored is sometimes a long process.
12.2. The Agency is entitled to include a reference to the client on all advertising materials and advertising measures created for the client; the client is not entitled to any remuneration therefor. The Agency has the right to refer to the existing or former business relationship with the client by displaying their name and logo on its own advertising media and, in particular, on its website.
13. FINAL PROVISIONS
13.1. The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the client are governed by Austrian law with the exclusion of its conflict of law rules, and with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2. The place of jurisdiction for any disputes arising between the Agency and the client is the court that has subject matter jurisdiction for the Agency’s registered office. Notwithstanding, the Agency is free to file a lawsuit at the court of the client’s domicile.
13.3. If individual provisions of this agreement are invalid, the remaining provisions of the agreement and the contracts concluded on the basis thereof will remain binding. The contracting parties will replace the invalid provision with a new provision that comes closest to the intended meaning and purpose.
13.4. Deviations from the GTC and other, supplementary agreements with the client only take effect if they have been accepted by the Agency in writing. This also applies to any amendment waiving the requirement of the written form.