TERMS OF SERVICE (TOS)

Astecker Werbeagentur GmbH
Zollergasse 37/7
1070 Vienna
“Agency”

1. Scope and Conclusion of Contract

These Terms of Service (“TOS”) exclusively apply to all legal transactions between customers and the Agency. The Agency enters into contracts solely based on these terms. The customer explicitly acknowledges having taken note of these TOS in a legally binding manner, making them part of the contract. This also applies if the customer refers to their own terms of service.
Any terms of service of the customer are not accepted, even if they are known, unless expressly agreed otherwise in individual cases. The Agency explicitly objects to any terms of service of the customer. No further objection to the customer’s TOS by the Agency is required.
These TOS also apply to all future contractual relationships, even if they are not explicitly referred to in additional agreements.
Changes to the TOS will be communicated to the customer and are deemed agreed upon if the customer does not object in writing within 14 days.

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

The scope and type of services are outlined in the service description in the agreement with the customer or the order confirmation issued by the Agency (“offer documents”). Subsequent changes to the scope of services require written confirmation from the Agency. Within the framework set by the customer, the Agency retains creative freedom in executing the assignment.
All services provided by the Agency (including but not limited to layouts, drafts, sketches, final designs, proofs, blueprints, copies, color prints, and electronic files) must be reviewed by the customer and approved within three business days of receipt. Due to production constraints, approval may be required sooner. If the customer fails to provide timely approval, the Agency is not liable for any delays in the production process.
The customer must provide the Agency with all necessary information and documents in a timely and complete manner to enable service provision. The customer must also inform the Agency of all circumstances relevant to order execution, even if these only become known during the contract’s execution. The customer bears the costs incurred due to incorrect, incomplete, or subsequently changed information requiring rework or causing delays.
Furthermore, the customer is responsible for ensuring that any materials provided (e.g., photos, logos, images, fonts, etc.) do not infringe third-party copyrights, trademarks, or other rights. The customer guarantees that such materials are free from third-party rights and may be used for the intended purpose. The Agency is not liable for any infringement of such third-party rights in the event of slight negligence or after fulfilling its duty of warning – in any case, the Agency is not liable toward the customer in such instances. If the Agency is held liable by a third party for such infringements, the customer agrees to indemnify and hold the Agency harmless and to compensate the Agency for all disadvantages incurred, particularly the costs of legal representation. The customer must support the Agency in defending against any third-party claims and must provide all necessary documents without delay.

3. Third-Party Services/Engagement of Third Parties

The Agency is entitled, at its sole discretion, to execute the services itself, engage knowledgeable third parties as subcontractors, and/or subcontract such services (“third-party services”).
Third-party service providers may be engaged either in the Agency’s name or – upon prior agreement with the customer – in the customer’s name. The Agency carefully selects such third parties and ensures that they possess the required professional qualifications.
If the Agency commissions necessary or agreed-upon third-party services, the respective contractors are not considered the Agency’s vicarious agents.
The customer assumes obligations towards third parties that extend beyond the contract term. This applies explicitly even in cases where the contract is terminated for cause.

4. Social Media

The Agency explicitly informs the customer before placing an order that “Social Media Providers” (such as Facebook, Instagram, Twitter, etc.) reserve the right, according to their terms of use, to reject or remove advertisements or profiles at their discretion. Consequently, the providers are not obligated to forward content or information to users. The Agency cannot predict whether advertising materials or profiles will be removed without reason. If another user files a complaint, the providers allow a counterstatement but may still immediately remove the content. Restoring the original state can take considerable time.
The Agency operates under these providers’ terms and conditions, over which it has no influence, and bases its orders on them. The customer explicitly acknowledges that these conditions also shape the rights and obligations of any contractual relationship. The Agency commits to executing the customer’s orders to the best of its knowledge and adhering to social media guidelines. However, due to current terms of use and the ease with which users can claim legal violations to have content removed, the Agency assumes no liability for the continuous availability of an ordered campaign.

5. Concept and Idea Protection

If the prospective customer invites the Agency to create a concept before signing a contract, and the Agency follows this invitation, the following rules apply:
By issuing the invitation and the Agency’s acceptance, the prospective customer and the Agency enter into a contractual relationship (“pitching contract”). These TOS apply to this contract as well.
The prospective customer acknowledges that the Agency incurs significant costs in concept development, even though the customer has not yet assumed any service obligations.
The concept is protected by copyright law in its textual and graphic components. Any use or modification of these components without the Agency’s consent is prohibited under copyright law.
Additionally, the concept contains advertising ideas that may not be protected by copyright but are unique and contribute significantly to the marketing strategy. The prospective customer is prohibited from commercially exploiting or having third parties exploit the creative advertising ideas presented by the Agency outside the scope of a later concluded main contract.
If the prospective customer believes that ideas presented by the Agency were already known to them before the presentation, they must inform the Agency in writing within seven days of the presentation date, providing evidence to establish a timeline. Otherwise, the parties assume that the Agency presented a new idea. If the customer uses this idea, the Agency is entitled to compensation.
The prospective customer can free themselves from these obligations by paying reasonable compensation.

6. Deadlines

Delivery or performance deadlines are non-binding unless explicitly agreed otherwise in writing. Binding deadlines must be agreed upon in writing and confirmed by the Agency.
If the Agency’s service delivery is delayed due to circumstances beyond its control, such as force majeure or other unforeseeable, unavoidable events, service obligations are suspended for the duration and extent of the hindrance. Deadlines are extended accordingly. If such delays persist for more than two months, both the customer and the Agency are entitled to withdraw from the contract.
If the Agency is in default, the customer may withdraw from the contract only after granting a written grace period of at least 14 days. Claims for damages due to non-performance or delay are excluded, except in cases of intent or gross negligence.
From the written approval of a layout, the Agency reserves a period of two working days to deliver the final design

7. Duration and Termination of Continuing Obligations

Service contracts are concluded for an indefinite period. Both parties are entitled to terminate the contract in writing with a notice period of four weeks to the end of the month.
The Agency is entitled to terminate the contract without notice for good cause by written declaration. Good cause includes, in particular, if the customer is notified of a material breach of this contract and fails to remedy it within at least 14 days after being requested to do so.
If the Agency withdraws from the contract due to the fault of the customer, the Agency may claim either a lump-sum compensation of 15% of the gross invoice amount or the actual damages incurred.
If the customer delays payment, the Agency is released from all further obligations and is entitled to withhold outstanding services and demand advance payments and/or securities.
Upon termination of the contractual relationship, the Agency is entitled to cease its services and irreversibly delete any data or information received from the customer. The customer is responsible for securing their data before termination.

8. Early Termination

The Agency may terminate the contract with immediate effect for good cause by written declaration. Good cause includes:
- If the execution of the service becomes impossible due to reasons attributable to the customer or is further delayed despite a 14-day grace period.
- If the customer repeatedly breaches essential obligations despite a written warning and a grace period of 14 days.
- If there are justified doubts about the customer’s creditworthiness, and the customer neither makes advance payments nor provides suitable security before the Agency performs the service.
The customer may terminate the contract with immediate effect for good cause by written declaration, particularly if the Agency continuously breaches essential provisions of the contract despite a written warning and a grace period of at least 14 days.

9. Compensation

Unless otherwise agreed, the Agency is entitled to payment for each individual service once rendered. The Agency may request advance payments.
For long-term projects, the Agency may issue interim invoices or call for installment payments.
All prices are net, exclusive of VAT. The Agency is entitled to customary market fees for the services provided and for the transfer of intellectual property rights.
Any cost estimates provided by the Agency are non-binding. If the actual costs exceed the estimated costs by more than 15%, the Agency will notify the customer. If the customer does not object within three business days, the additional costs are deemed approved.
If the customer cancels a commissioned project, the Agency is entitled to the agreed-upon compensation. The customer acquires no usage rights to unfinished work.

10. Payments

Payment is due upon receipt of the invoice, without deduction, unless otherwise agreed in writing.
In case of late payment, statutory default interest applicable to commercial transactions applies. Additionally, the customer agrees to cover all collection and legal costs.
If the customer defaults on payment, the Agency is entitled to make all outstanding claims from other contracts due immediately.
The Agency is not obligated to provide further services until outstanding payments are settled.
If installment payments are agreed upon, the Agency reserves the right to demand immediate payment of all outstanding amounts if a payment deadline is missed.
The customer is not entitled to offset claims against the Agency.

11. Ownership and Copyright

All work products of the Agency, including drafts, designs, sketches, final artwork, and concepts, remain the property of the Agency.
The customer acquires usage rights only upon full payment of the agreed-upon fee.
The Agency retains ownership and copyright of all work unless explicitly transferred.
The customer may not alter or further develop Agency work without explicit permission.
Extended use beyond the originally agreed scope requires Agency approval and is subject to additional fees.
After contract termination, the Agency reserves the right to compensation if the customer continues to use its work within three years.

12. Attribution

The Agency is entitled to credit its work on all advertising materials and campaigns unless otherwise agreed upon.
The Agency may reference its collaboration with the customer on its website and in promotional materials unless explicitly revoked by the customer.

13. Warranty

The customer must notify the Agency of any defects within eight days of delivery. Otherwise, the service is deemed accepted.
In case of justified defects, the Agency has the right to improve or replace the service.
The customer is responsible for verifying the legal compliance of the service. The Agency only conducts a basic review of legal validity.
The warranty period is six months from the date of service delivery.

14. Liability and Product Liability

The Agency is not liable for slight negligence.
The Agency is not responsible for damages resulting from third-party claims unless it has violated its duty to warn.
Liability claims expire six months after knowledge of the damage or, in any case, three years after the service.
Damage claims are limited to the net contract value.

15. Data Protection

The customer agrees that the Agency may store and process personal data for contract fulfillment and marketing purposes.
The customer may revoke consent at any time in writing.
More details on data processing can be found in the Agency’s privacy policy.

16. Jurisdiction, Governing Law, and Final Provisions

The place of fulfillment is the Agency’s registered office.
The exclusive place of jurisdiction is the competent court at the Agency’s registered office.
Austrian law applies, excluding international private law and the UN Sales Convention.
If any provision of this contract is or becomes invalid, the remaining provisions remain unaffected. The parties agree to replace the invalid provision with a legally permissible provision that closely resembles the economic intent of the invalid provision.

17. Final Provisions

All legally binding declarations under this contract must be sent in writing to the last known address of the other party.
The transfer of individual rights and obligations from this contract requires the prior written consent of the other party.