Terms & Conditions
REFLECTION – THE AGENCY
Lorenz Reiter Straße 1/1/44
1110 Vienna
Hereinafter referred to as the “Agency”
1. Conclusion of the contract and scope of application
All legal transactions between the Client and Reflection THE AGENCY (hereinafter referred to as the “Agency”) shall be governed exclusively by these General Terms and Conditions (“Terms”). The Agency enters into contracts solely on the basis of the following conditions. The Client expressly acknowledges having taken legally binding notice of these Terms, which thereby form part of the contract. This also applies where the Client refers to its own general terms and conditions.
Any general terms and conditions of the Client shall not be recognised, even if the Agency is aware of them, unless expressly agreed otherwise in an individual case. The Agency expressly objects to the Client’s general terms and conditions. No further objection by the Agency to the Client’s terms and conditions is required.
These Terms also apply to all future contractual relationships, including in particular where supplementary agreements do not expressly refer to them.
Amendments to these Terms shall be communicated to the Client in writing and shall be deemed agreed unless the Client objects to the amended Terms in writing within 14 days. Transmission by email is expressly agreed to satisfy the requirement of written form.
2. Scope of services, order processing and the Client’s duties to cooperate
The scope and nature of the services are set out in the description of services in the contract with the Client or in the Agency’s order confirmation (“Proposal Documents”). Subsequent changes to the content of the services require written confirmation by the Agency. The Agency has creative freedom in performing the assignment within the parameters specified by the Client.
All work supplied by the Agency (in particular preliminary designs, layouts, sketches, galley proofs, final artwork, blueprints, colour proofs, copies and electronic files) must be checked by the Client and approved no later than 7 working days after receipt. The nature of a service supplied by the Agency, and production requirements in particular, may also require immediate or prompt approval. If the Client fails to grant approval in time, the Agency shall not be liable for delays in the production process.
The Client must provide the Agency with all information and documents necessary to perform the services in full and in good time. The Client must inform the Agency of all circumstances relevant to the performance of the assignment, even if those circumstances become known only while the assignment is being performed. The Client shall bear any additional expense arising where the Agency must repeat work, work is delayed, or further work by the Agency becomes necessary as a result of information supplied by the Client that is subsequently changed, incomplete or incorrect.
The Client is also obliged to check the materials provided for the performance of the assignment (e.g. images, typefaces, logos, photographs, etc.) for any trademark rights, copyrights, rights in distinctive signs or other third-party rights, and warrants that they are free of third-party rights and may therefore be used for the intended purpose. In cases of merely slight negligence or after fulfilling its duty to warn, and in any event in its internal relationship with the Client, the Agency shall not be liable for infringements of such third-party rights caused by the materials provided.
If a third party brings a claim against the Agency for such an infringement, the Client shall indemnify and hold the Agency harmless. The Client must compensate the Agency for all detriment arising from the third-party claim, in particular the costs of appropriate legal representation. The Client undertakes to support the Agency in defending against third-party claims. The Client must provide the Agency with all documents required for this purpose without being asked and within the applicable deadlines.
3. External services / engagement of third parties
The Agency may, at its own discretion, perform the services itself, use qualified third parties as vicarious agents to perform the contractual services, or delegate such services.
Third parties providing external services shall be engaged either in the Agency’s own name or, following prior consultation with the Client, in the Client’s name. The Agency is responsible for selecting the third party with care and ensuring that the third party has the necessary professional qualifications.
Where the Agency commissions agreed or necessary external services, the respective contractors are not vicarious agents of the Agency.
The Client must assume any obligations of the Agency towards third parties that extend beyond the term of the contract. This expressly also applies if the contract is terminated for good cause.
4. Social media
Before the order was placed, the Agency expressly informed the Client that providers of social media channels such as Instagram, Facebook, TikTok, etc. (“Providers”) reserve the right in their terms of use to reject or remove advertisements and advertising presences for any reason. The Providers are therefore under no obligation to pass content and information on to users. There is consequently a risk, which the Agency can neither foresee nor calculate, that advertisements and advertising presences may be removed without reasons being given. Although the Providers offer an opportunity to respond when another user makes a complaint, the Agency reserves the right to delete the content immediately in this case as well. The Client acknowledges that restoring the original lawful situation may take some time in such a case. The Agency operates on the basis of the respective Providers’ terms of use, over which it has no influence, and also applies them to the Client’s assignment. By placing the order, the Client expressly acknowledges that these terms of use determine, at least in part, the rights and obligations of any contractual relationship. The Agency hereby undertakes to carry out the Client’s assignment to the best of its knowledge and ability and to comply with the social media channels’ guidelines. The Client expressly acknowledges that, in view of the terms of use currently in force and the ease with which any user can allege an infringement and thereby obtain removal of content, the Agency excludes liability for ensuring that a commissioned campaign is accessible at all times.
5. Protection of ideas and concepts
If a prospective Client has asked the Agency to prepare a concept before the contract is concluded, and the Agency complies with that request before conclusion of the contract, the following provisions apply:
The concept is protected by copyright, particularly in its verbal and graphic form, including both its verbal and its graphic elements. Under copyright law alone, the prospective Client is not entitled to use or modify these elements without the Agency’s consent.
The concept also contains advertising-related ideas. These ideas are the starting point of every creative process and are defined as the impetus for everything that follows and thus as the origin of the marketing strategy. Protection therefore extends to those elements of the concept that are significant to the uniqueness and distinctive character of the marketing strategy. For the purposes of this contract, ideas include in particular advertising copy, advertising slogans, illustrations and graphics, advertising materials, etc., even if they do not yet reach the level of originality required for copyright protection.
The Client undertakes not to commercially exploit or use, or allow others to commercially exploit or use, the creative advertising ideas presented by the Agency as part of its conceptual work outside the framework of a principal contract to be concluded subsequently.
If the prospective Client believes that ideas presented by the Agency were already known to it before the presentation, it must inform the Agency in writing (by letter, fax or email) within 14 days of the presentation date, enclosing evidence that establishes the relevant timing.
Otherwise, the contracting parties shall assume that the Agency has presented the prospective Client with an idea that is new to it. If the Client exploits the idea, it shall be assumed that the Agency made a meritorious contribution to it.
The prospective Client may release itself from its obligations under this section by paying appropriate compensation.
6. Deadlines
Delivery or performance periods quoted are approximate and non-binding unless expressly agreed to be binding. Binding deadlines must be agreed in writing or confirmed in writing by the Agency. Transmission by email is also expressly agreed to satisfy the requirement of written form.
If the Agency’s delivery or performance is delayed for reasons for which it is not responsible or which do not relate to the contractor itself, such as weather conditions during outdoor shoots, force majeure, the timely provision of products and props, the unavailability of models, travel disruption or events that cannot be prevented by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment, and the Client shall bear the risk of these circumstances. The deadlines shall be extended accordingly. The Client and the Agency may withdraw from the contract if the delay lasts longer than two months.
If the Agency is in default, the Client may withdraw from the contract only after setting the Agency a reasonable additional period of at least 14 days in writing and that period has expired without performance. Claims by the Client for damages arising from non-performance or delay are excluded unless intent or gross negligence is proven.
The Agency also reserves the right, where submission deadlines have been agreed in writing, to require feedback or the return of designs, sketches, layouts, presentations, etc. 14 days before the submission deadline. This is necessary to ensure the agreed quality and to make any changes. If the Client has not provided feedback or approval to the Agency 14 days before the submission deadline, the Agency shall not be bound by that deadline. Consequently, the Agency shall not be liable for damage arising from failure to meet the submission deadline.
The Agency reserves a period of 10 working days from written approval of the layout to deliver the final work product.
Time shall be of the essence only where expressly agreed in writing. In the event of any delivery delays, section 6, paragraph four, and section 12 shall apply accordingly.
Shipments are made at the Client’s risk and expense.
7. Duration and termination of continuing contractual relationships
Contracts for the provision of services shall be concluded for an indefinite period. The contracting parties, the Client and the Agency, may terminate the contractual relationship in writing with four weeks’ notice effective at the end of a calendar month.
The Agency may terminate the contract for good cause by written declaration without observing a notice period. Good cause exists in particular where the Client has been warned about a breach of a material provision of this contract and requested to remedy the breach within a period of at least 14 days, and the Client has failed to comply within that period.
If the contract is rescinded due to fault on the part of the Client, the Agency may choose between liquidated damages of 15% of the gross invoice amount and compensation for the damage actually incurred. If the Client is in payment default, the Agency is released from all further service and delivery obligations and may withhold outstanding deliveries or services and demand advance payments and/or security.
Whenever the contractual relationship ends, the Agency may discontinue its services and irretrievably delete all data and information received from the Client. The Client must back up its data at its own expense before the contractual relationship ends. If the backup is not completed in time, claims against the contractor arising from deletion of the data (warranty claims, damages, etc.) are excluded in all cases.
8. Early termination
The Agency may terminate the contract for good cause with immediate effect by written declaration. Good cause exists in particular if:
* performance of the services becomes impossible for reasons for which the Client is responsible, or continues to be delayed despite an additional period of 14 days having been set;
* the Client breaches material obligations under this contract, such as payment of an amount due or duties to cooperate, despite a written warning setting an additional period of 14 days;
* bankruptcy or insolvency proceedings are opened over the Client’s assets, or an application to open such proceedings is rejected because there are insufficient assets to cover the costs;
* there are justified doubts about the Client’s ability to pay and, when requested by the Agency, the Client neither makes advance payments nor provides suitable security before the Agency performs its services.
The Client may terminate the contract for good cause with immediate effect by written declaration. Good cause exists in particular where the Agency breaches material contractual provisions despite a written warning granting a reasonable additional period of at least 14 days to remedy the breach.
9 Remuneration
Unless otherwise agreed, the Agency’s entitlement to remuneration for each individual service arises as soon as that service has been performed. The Agency may demand advances to cover its expenses. For assignments extending over a longer period, the Agency may issue interim invoices or advance invoices, or demand payments on account.
Entitlements to fees and licence fees exist regardless of whether the work product supplied is (still) protected by copyright and/or related rights.
The Agency reserves the right to demand an advance payment of 50% of the anticipated costs.
Remuneration is stated net of VAT, which shall be added at the applicable statutory rate. Unless otherwise agreed in an individual case, the Agency is entitled to a fee at the customary market rate for the services performed and for granting rights of use under copyright and rights in distinctive signs.
All services supplied by the Agency that are not expressly covered by the agreed remuneration shall be remunerated separately. The Client must reimburse all out-of-pocket expenses incurred by the Agency.
The Agency’s cost estimates are non-binding. If it becomes apparent that the actual costs will exceed the Agency’s written estimate by more than 15%, the Agency shall inform the Client of the higher costs. The Client has already been informed that the cost overrun shall be deemed approved unless the Client objects in writing within three working days of this notification and at the same time identifies less expensive alternatives. No separate notification is required for a cost overrun of up to 15%. Such a cost overrun is deemed approved by the Client in advance.
The Agency is entitled to the agreed remuneration for all work that the Client, for whatever reason, does not have carried out. The deduction provision of § 1168 of the Austrian General Civil Code (ABGB) is excluded. Payment of the remuneration does not give the Client any rights of use in services already performed. Instead, concepts, designs and other documents that have not been implemented must be returned to the Agency immediately.
10 Payments
Unless otherwise agreed in writing in an individual case, remuneration is due without deduction upon receipt of the invoice. This also applies to the onward charging of all out-of-pocket expenses and other expenditure.
If the Client is in payment default, statutory default interest at the rate applicable to business transactions shall apply. [SI1] [SA2] The statutory default interest currently applicable shall apply to consumers. In the event of payment default, the Client also undertakes to reimburse the Agency’s reminder and collection costs insofar as they are necessary for the appropriate enforcement of its rights. This includes, in all cases, a flat amount of EUR 40 to cover recovery costs under § 458 of the Austrian Commercial Code (UGB). The assertion of further rights and claims remains unaffected.
If the Client is in payment default, the Agency may declare all services and partial services under other contracts concluded with the Client immediately due for payment.
The Agency is not obliged to perform further services before the outstanding amount has been paid. The obligation to pay the remuneration remains unaffected.
Where payment by instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding balance if instalments or ancillary amounts are not paid on time (acceleration of payment).
The Client has no right to set off its own claims against claims of the Agency.
11 Copyright and ownership
All work supplied by the Agency, including work presented in presentations (e.g. suggestions, sketches, ideas, preliminary designs, final artwork, rough sketches, concepts, slides, negatives, etc.), including individual parts thereof, remains the Agency’s property, as do the individual workpieces and original designs. The Agency may demand their return at any time, in particular upon termination of the contractual relationship. By paying the remuneration, the Client acquires the right of use for the agreed purpose. Unless expressly agreed otherwise, the Client may use the Agency’s work exclusively in Austria. Acquisition of rights to use and exploit the Agency’s work is in all cases conditional upon full payment of the remuneration invoiced by the Agency for that work. If the Client uses the Agency’s work before that time, such use is based on a loan arrangement that may be revoked at any time.
Changes to or adaptations of the Agency’s work, in particular its further development by the Client or third parties acting for the Client, are permitted only with the express consent of the Agency and, insofar as the work is protected by copyright, of its author.
Any use of the Agency’s work beyond the originally agreed purpose and scope requires the Agency’s consent, regardless of whether the work is protected by copyright. The Agency and the author are entitled to separate, appropriate remuneration for such use.
Even after the contract has ended, exploitation of the Agency’s work or of advertising materials for which the Agency has developed conceptual or design templates requires the Agency’s consent, regardless of whether the work is protected by copyright.
For uses pursuant to section 12, paragraph four, the Agency is entitled in the 1st year after the end of the contract to the full Agency remuneration agreed in the expired contract. In the 2nd and 3rd years after expiry, it is entitled only to one half and one quarter, respectively, of the contractually agreed remuneration. From the 4th year after the end of the contract, no further Agency remuneration is payable.
For any unlawful use, the Client shall be liable to the Agency for twice the appropriate remuneration for that use.
12 Attribution
The Agency may identify itself and, where applicable, the author on all advertising materials and in all advertising activities, without the Client thereby becoming entitled to remuneration.
Subject to written revocation by the Client at any time, the Agency may refer to its existing or former business relationship with the Client by using the Client’s name and company logo in the Agency’s own advertising media, in particular on its website (client reference).
13 Warranty and performance
The Client must notify the Agency in writing, describing the defect, of any defects without delay and in any event within eight days of delivery or performance by the Agency; hidden defects must be reported within eight days of becoming discoverable. Otherwise, the work shall be deemed approved. In that case, warranty claims, claims for damages and the right to challenge the contract on the grounds of mistake due to defects are excluded.
Where a complaint about defects is justified and made in time, the Client is entitled to correction or replacement of the delivery or service by the Agency, provided the defects are not insignificant. Colour differences in repeat orders are not considered a material defect[SI5] . The Agency shall remedy the defects within a reasonable period, and the Client must enable the Agency to take all measures necessary to investigate and remedy them. The Agency may refuse to improve the work if doing so is impossible or would involve disproportionately high expense for the Agency. In that case, the Client is entitled to the statutory rights of rescission or price reduction. Where work is corrected, the Client is responsible for sending the defective physical item at its own expense.
The Client has no further claims; in particular, the contractor shall not be liable for any travel and accommodation expenses, third-party costs, lost profits or consequential loss.[SI6] [SA7]
The Client is also responsible for checking the legal admissibility of the work, in particular under competition, trademark, copyright and administrative law. The Client agrees that the Agency is obliged to carry out only a preliminary review of legal admissibility. In cases of slight negligence or after fulfilling any duty to warn the Client, the Agency shall not be liable for the legal admissibility of content specified or approved by the Client.
The warranty period is three months [SI8] [SA9] from delivery or performance, unless other consumer protection provisions apply. The right of recourse against the Agency under § 933b(1) ABGB expires one year after delivery or performance. The Client has no right to withhold payments on account of complaints. The presumption rule under § 924 ABGB is excluded.
The Client bears the risk of all circumstances that do not relate to the contractor itself, such as weather conditions during outdoor shoots, the timely provision of products and props, the unavailability of models, travel disruption, etc.
14 Liability and product liability
In cases of slight negligence, liability of the Agency and of its employees, contractors or other vicarious agents for damage to the Client’s property or financial loss is excluded, whether direct or indirect damage, lost profits, consequential loss caused by defects, damage arising from delay, impossibility, breach of contractual duties, fault in the conclusion of the contract, or defective or incomplete performance. The injured party bears the burden of proving gross negligence.
Any liability of the Agency for claims brought against the Client as a result of work performed by the Agency (e.g. an advertising activity) is expressly excluded if the Agency has fulfilled its duty to inform or if such a duty was not apparent to it; slight negligence does not affect this exclusion. In particular, the Agency shall not be liable for the Client’s own legal fees, litigation costs or costs of publishing judgments, or for any claims for damages or other third-party claims. The Client shall indemnify and hold the Agency harmless in this regard.
The Client’s warranty claims become time-barred six months after the Client becomes aware of the damage, but in any event three years after the Agency’s infringing act. Claims for damages are limited in amount to the net order value.
15 Data protection
The Client consents to the automated collection, storage and processing of its contact details, such as company/name, occupation, date of birth, commercial register number, contact person, powers of representation, business address and other addresses of the Client, fax number, telephone number, email address, credit card details, bank details and VAT identification number, for the purposes of performing the contract and providing client support, as well as for the Agency’s own advertising purposes, for example sending offers, advertising brochures and newsletters (in paper and electronic form), and for referring to the existing or former business relationship with the Client (client reference).
This consent may be withdrawn at any time in writing by email, fax or letter using the contact details stated at the beginning of these Terms.
The Client agrees to receive messages for advertising purposes within the meaning of § 107 of the Austrian Telecommunications Act (TKG) from the Agency or companies commissioned by the Agency. The Client may withdraw this consent at any time.
Further information about the Agency’s processing of data can be found in our Privacy Policy.
16 Place of performance, jurisdiction and choice of law
The place of performance is the Agency’s registered office. In the case of shipment, risk passes to the Client as soon as the Agency hands the goods over to the carrier selected by it.
The court with subject-matter jurisdiction for the location of the Agency’s registered office is agreed as the exclusive place of jurisdiction for all disputes arising between the Agency and the Client in connection with this contractual relationship.
This contract is governed by Austrian substantive law, excluding the conflict-of-laws rules of private international law and the United Nations Convention on Contracts for the International Sale of Goods.
If individual provisions of this contract are or become legally ineffective, invalid and/or void, this shall not affect the legal effectiveness and validity of the remaining provisions. In that event, the contracting parties undertake to replace the legally ineffective, invalid and/or void provision with a legally effective and valid provision that, insofar as possible and legally permissible, corresponds in its economic effect to the provision being replaced.
For all disputes or claims arising out of or in connection with this contract, including disputes concerning its validity, breach, termination or nullity, the parties agree to discuss conducting proceedings under the Mediation Rules (“Vienna Mediation Rules”) of the Vienna International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC).
17 Final provisions
All legally binding declarations under this contract must be made in writing to the address most recently notified in writing by the other contracting party. Declarations sent to the address most recently notified in writing shall be deemed received by the respective contracting party.
The assignment of individual rights and obligations under these Terms and the contract is permitted only with the other contracting party’s express written consent.