1. Applicability
1.1. The company Wie der Wind – hereinafter referred to as the “Agency” – provides its services exclusively on the basis of these General Terms and Conditions. These also apply to all future business relationships, even if they are not explicitly referred to.
1.2. Side agreements, reservations, changes, or additions to these General Terms and Conditions require written form to be valid; this also applies to any deviation from the written form requirement.
1.3. Any terms and conditions of the contractual partner that conflict with or deviate from these General Terms and Conditions shall only be valid if explicitly acknowledged in writing by the Agency, even if the Agency is aware of them.
1.4. If individual provisions of these General Terms and Conditions are invalid, this does not affect the validity of the remaining provisions and contracts concluded on their basis. The invalid provision shall be replaced by a valid one that comes closest to the meaning and purpose of the invalid provision.
2. Conclusion of Contract
2.1. The basis for the conclusion of the contract is the respective offer from the Agency or the customer’s order, in which the scope of services and remuneration are specified. The Agency’s offers are non-binding and valid for eight weeks.
2.2. If the customer places an order, they are bound by it for two weeks from the date it is received by the Agency. The contract comes into effect when the Agency accepts the order. Acceptance must be in written form (e.g., order confirmation) unless the Agency clearly indicates acceptance (e.g., by commencing work on the order).
3. Scope of Services, Order Processing, and Customer Obligations
3.1. The scope of services to be provided is based on the customer’s order, the service description, or the contract details. Subsequent changes to the service content require written form.
3.2. All services provided by the Agency (in particular, preliminary drafts, sketches, final drawings, proofs, blueprints, and color prints) must be reviewed by the customer and approved within three days. If no timely approval is provided, they are deemed approved by the customer.
3.3. The customer must promptly provide the Agency with all information and documents necessary for the performance of the service. They must inform the Agency of any events that are relevant to the execution of the order, even if such circumstances only become known during the order’s execution. The customer bears the costs arising from rework or delays caused by incorrect, incomplete, or subsequently changed information.
3.4. The customer is also obligated to review any materials (photos, logos, etc.) provided for the order to ensure they do not infringe on the copyright, trademark rights, or other third-party rights. The Agency is not liable for any such violations. If claims are made against the Agency due to such infringements, the customer shall indemnify and hold the Agency harmless.
4. Third-Party Services / Commissioning of Third Parties
4.1. The Agency may, at its discretion, provide services itself, use third parties to provide contractual services, and/or substitute such services (“vicarious agents”).
4.2. The commissioning of vicarious agents takes place either in the name of the Agency or the customer but always at the customer’s expense.
4.3. The Agency will carefully select vicarious agents and ensure they have the necessary professional qualifications.
5. Deadlines
5.1. Deadline and schedule agreements must be documented or confirmed in writing. The Agency will strive to meet the agreed deadlines. However, the customer’s rights only come into effect if the Agency is granted a reasonable grace period of at least 14 days after receiving a written reminder.
5.2. If the grace period expires without result, the customer may withdraw from the contract. Compensation for delay is only due in cases of willful misconduct or gross negligence by the Agency.
5.3. Unavoidable or unforeseen events – especially delays caused by the Agency’s contractors – release the Agency from the obligation to meet deadlines. The same applies if the customer is in default of obligations required to execute the order (e.g., providing documents or information).
6. Withdrawal from the Contract
The Agency is entitled to withdraw from the contract if:
- the execution of the service becomes impossible for reasons attributable to the customer, or if it is delayed despite the setting of a grace period;
- legitimate concerns exist regarding the customer’s creditworthiness, and the customer fails to provide advance payments or appropriate security upon request.
7. Fees
7.1. Unless otherwise agreed, the Agency’s fee is due for each service as soon as it is provided. The Agency is entitled to demand advance payments to cover its expenses.
7.2. The standard fee for the Agency’s services and the transfer of copyright and trademark usage rights is 20% of the advertising budget managed by the Agency, unless otherwise agreed.
7.3. Services not explicitly covered by the agreed fee will be charged separately. Out-of-pocket expenses incurred by the Agency must be reimbursed by the customer.
7.4. If cost estimates are exceeded by more than 10%, the Agency will inform the customer. The customer’s consent is deemed given unless the customer objects in writing within three days and proposes cost-effective alternatives.
7.5. If the customer does not implement the work for any reason, the Agency is entitled to an appropriate fee for its efforts.
8. Payment
8.1. Agency invoices are payable within 10 calendar days of receipt, net without deductions. If payment is late, 12% interest per annum applies.
8.2. A fee of EUR 1 applies for each invoice sent by post.
8.3. Customers must reimburse all costs associated with debt collection, including collection fees or legal costs.
8.4. If the customer is in arrears, the Agency may declare payments for all other contracts with the customer immediately due.
8.5. Customers cannot offset claims against the Agency’s claims unless these claims are acknowledged in writing by the Agency or legally established.
9. Presentations
9.1. The Agency is entitled to an appropriate fee for participation in presentations.
9.2. If no order follows a presentation, all documents and concepts remain the property of the Agency. Customers may not use or distribute these materials in any form.
9.3. Use of the presented ideas and concepts is prohibited unless the Agency’s designs are implemented as advertising material.
10. Property Rights and Copyright Protection
10.1. All drafts from nikoshimedia are subject to copyright law, even if they do not meet the creation threshold required by Section 2 UrhG.
10.2. Drafts may not be modified, used, or copied without the Agency’s consent.
10.3. Clients are granted a simple usage right for a specific purpose.
11. Warranty and Liability
11.1. Complaints must be reported within three days of performance.
11.2. Justified complaints will be addressed within a reasonable period. The Agency may refuse to make corrections if doing so would incur disproportionate costs.
11.3. The burden of proof for defects, time of detection, and timely complaint submission lies with the customer.
11.4. Compensation claims are limited to cases of willful intent or gross negligence.
12. Governing Law
Austrian law applies exclusively to the contractual relationship between the customer and the Agency.
13. Place of Performance and Jurisdiction
13.1. The place of performance is the Agency’s registered office.
13.2. The exclusive place of jurisdiction for all disputes is the Austrian court responsible for the Agency’s registered office.
14. Applicable Law
The legal relationship between the customer and the Agency is exclusively governed by Austrian law, excluding international reference norms. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.
15. Place of Performance and Jurisdiction
15.1. The place of performance is the registered office of the Agency.
15.2. The exclusive place of jurisdiction for all disputes arising directly between the Agency and the customer is the Austrian court responsible for the location of the Agency’s registered office.
