WELSTAR Communications Agency

• Mozartstraße 34, 4600 Wels

• 07242 / 77232 or 0676 95 34 933

• office@welstar.at or epopart@gmx.at

• VAT ID: ATU58115006

• Chamber: WKO Austria

• Tax number: 018/8554

• Place of jurisdiction: Wels

1. Validity, conclusion of contract

1.1 WELSTAR Communications Agency (hereinafter referred to as “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These also apply to all future business relationships, even if no express reference is made to them.

1.2. Subsidiary agreements, reservations, amendments, or additions to these General Terms and Conditions must be made in writing 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 terms and conditions shall only be effective if they are expressly recognized by the Agency in writing, even if the Agency is aware of them.

1.4. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes closest to its meaning and purpose.

2. Conclusion of contract

2.1. The basis for the conclusion of the contract is the respective offer of the agency or the client's order, in which the scope of services and remuneration are specified. The agency's offers are subject to change and non-binding.

2.2. If the client places an order, they are bound to it for two weeks from its receipt by the agency. The contract is concluded upon acceptance of the order by the agency. Acceptance must generally be in writing (e.g., by order confirmation) or, in exceptional cases, also verbally.

3. Protection of concepts and ideas

If the potential customer has already invited the agency in advance to develop a concept and the agency complies with this invitation before the main contract is concluded, the following provision shall apply:

3.1 The invitation and the agency's acceptance of the invitation alone shall establish a contractual relationship between the potential customer and the agency (“pitching contract”). This contract is also based on the General Terms and Conditions.

3.2 The potential customer acknowledges that the agency is already providing cost-intensive advance services by developing the concept, even though the potential customer has not yet assumed any performance obligations.

3.3 The linguistic and graphic parts of the concept are subject to copyright protection insofar as they reach the level of a work. The potential customer is not permitted to use or edit these parts without the Agency's consent on the basis of copyright law alone.

3.4 The concept also contains advertising-related ideas that do not reach the level of a work and are therefore not protected by copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that comes later and thus as the origin of the marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. For the purposes of this agreement, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are considered ideas, even if they do not reach the level of a work.

3.5 The potential customer undertakes to refrain from commercially exploiting or allowing the exploitation of these creative advertising ideas presented by the agency as part of the concept outside the corrective measures of a main contract to be concluded at a later date, or from using or allowing the use of these ideas.

3.6 If the potential customer believes that the agency has presented ideas to them that they had already come up with prior to the presentation, they must notify the agency of this by email within 14 days of the date of the presentation, providing evidence that allows the timing to be verified.

3.7 Otherwise, the parties assume that the agency presented the potential client with an idea that was new to them. If the client uses the idea, it's assumed that the agency deserves credit for it.

3.8 The potential customer may be released from its obligations under this clause by paying reasonable compensation, calculated on a case-by-case basis, plus 20% sales tax. The release shall only take effect after the Agency has received full payment of the compensation.

4. Scope of services, order processing, and customer's obligations to cooperate

4.1 The scope of the services to be provided is set out in the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol (“offer documents”). Subsequent changes to the content of the services require written confirmation by the Agency. Within the framework specified by the customer, the Agency has creative freedom in the fulfillment of the order.

4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints, and electronic files) must be checked by the Customer and approved by them within three working days of receipt. If this period expires without feedback from the Customer, they shall be deemed to have been approved by the Customer.

4.3 The customer shall provide the agency with all information and documents required for the performance of the service in a timely and complete manner. The customer shall inform the agency of all circumstances relevant to the execution of the order, even if these only become known during the execution of the order. The customer shall bear the costs incurred if work has to be repeated or delayed by the agency as a result of incorrect, incomplete, or subsequently changed information provided by the customer.

4.4 The customer is also obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights, labeling rights, or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. The agency shall not be liable in cases of slight negligence or after fulfilling its duty to warn – at least in its internal relationship with the customer – for any infringement of such third-party rights by documents provided. If a third party makes a claim against the agency for such an infringement, the customer shall indemnify and hold the agency harmless; and shall compensate the Agency for all disadvantages incurred by the Agency as a result of claims by third parties, in particular the costs of appropriate legal representation. The customer undertakes to support the Agency in defending against any claims by third parties. The customer shall provide the Agency with all documents for this purpose without being asked to do so.

5. External services / commissioning third parties

5.1 The Agency is entitled, at its own discretion, to perform the service itself, to use competent third parties as vicarious agents in the performance of contractual services, and/or to substitute such services (“external services”).

5.2 Third parties shall be commissioned within the scope of external services either in the Agency's own name or in the name of the Client, the latter after prior notification to the Client. The Agency shall select these third parties with care and ensure that they have the necessary professional qualifications.

5.3 The customer shall be liable for obligations to third parties that have been disclosed to the customer and that extend beyond the term of the contract. This shall also apply expressly in the event of termination of the agency contract for good cause.

6. Deadlines

6.1. Agreements on deadlines and dates must be recorded or confirmed in writing. The agency shall endeavor to meet the agreed deadlines. However, failure to meet deadlines shall only entitle the customer to assert his statutory rights if he has granted the agency a reasonable grace period of at least 14 days. This period shall commence upon receipt of a reminder letter by the agency.

6.2. If the grace period expires without result, the customer may withdraw from the contract. An obligation to pay damages on the grounds of delay shall only exist in the event of intent or gross negligence on the part of the Agency.

6.3. Unavoidable or unforeseeable events – in particular delays on the part of the Agency's contractors – shall in any case release the Agency from compliance with the agreed delivery date. The same applies if the customer is in default with its obligations necessary for the execution of the order (e.g., provision of documents or information). In this case, the agreed date shall be postponed at least to the extent of the delay.

7. Withdrawal from the contract

The agency is entitled to withdraw from the contract in particular if:

• the performance of the service is impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period;

• there are justified concerns regarding the customer's creditworthiness and the customer neither makes advance payments nor provides suitable security at the agency's request prior to the agency's performance.

8. Fee

8.1. Unless otherwise agreed, the Agency shall be entitled to a fee for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses.

8.2. Unless otherwise agreed, the Agency shall receive a fee amounting to 15% of the advertising budget handled by it for the services rendered and the compensation for the copyright and trademark rights of use. The fee is exclusive of statutory sales tax.

8.3. All services provided by the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.

8.4. Cost estimates provided by the Agency are generally non-binding. If it is foreseeable that the actual costs will exceed the Agency's written estimate by more than 5%, the Agency shall notify the Client of the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three days of receiving this notification.

8.5. The agency shall be entitled to reasonable remuneration for all work performed by the agency that is not carried out by the client for any reason whatsoever. Payment of this remuneration does not entitle the client to any rights to this work; rather, any concepts, drafts, and other documents that have not been implemented must be returned to the agency without delay.

9. Payment, retention of title

9.1. The Agency's invoices are due net cash without any deductions from the invoice date and, unless otherwise agreed, are payable within ten calendar days of receipt of the invoice. In the event of late payment, default interest of 10% p.a. shall be deemed agreed. Delivered goods remain the property of the Agency until full payment has been received.

9.2. The customer undertakes to bear all costs and expenses associated with the collection of the claim, in particular collection fees or other costs necessary for appropriate legal action.

9.3. In the event of default of payment by the customer, the agency may immediately demand payment for all services and partial services rendered within the scope of other contracts concluded with the customer.

9.4. The customer is not entitled to offset its own claims against claims of the agency, unless the customer's claim has been recognized in writing by the agency.

10. Property rights and copyright

10.1 All services provided by the Agency, including those from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), as well as individual parts thereof, remain the property of the Agency, as do the individual workpieces and original designs, and may be reclaimed by the Agency at any time, in particular upon termination of the contractual relationship. By paying the fee, the Client acquires the right to use the services for the agreed purpose. Unless otherwise agreed, the customer may only use the agency's services in Austria. The acquisition of rights of use and exploitation of the agency's services requires in all cases the full payment of the fees invoiced by the agency for this purpose. If the customer uses the agency's services before this point in time, this use is based on a loan agreement that can be revoked at any time.

10.2 Changes or modifications to the Agency's services, in particular their further development by the Client or by third parties working on behalf of the Client, are only permitted with the express consent of the Agency and, insofar as the services are protected by copyright, the copyright holder. The release of all so-called “open files” is therefore expressly not part of the contract. The Agency is not obliged to hand them over. This means that without a contractual assignment of rights of use, including for “electronic works,” the Client has no legal claim to them.

10.3 The use of the Agency's services beyond the originally agreed purpose and scope of use requires the Agency's consent, regardless of whether these services are protected by copyright. The Agency and the author are entitled to separate, appropriate remuneration for this.

10.4 The use of the Agency's services or advertising materials for which the Agency has developed conceptual or design templates also requires the Agency's consent after the Agency contract has expired, regardless of whether these services are protected by copyright or not.

10.5 For uses in accordance with paragraph 4, the agency is entitled to the full agency remuneration agreed in the expired contract in the first year after the end of the contract. In the second and third years after the end of the contract, only half and a quarter of the remuneration agreed in the contract is payable. From the fourth year after the end of the contract, no agency remuneration is payable.

10.6 The customer shall be liable to the agency for any unlawful use in double the amount of the fee appropriate for such use.

11. Labeling

11.1 The Agency is entitled to refer to the Agency and, if applicable, to the author on all advertising materials and in all advertising measures without the Customer being entitled to any remuneration for this.

11.2 Subject to the customer's right to revoke this in writing at any time, the Agency shall be entitled to refer to the existing or former business relationship with the customer on its own advertising media and, in particular, on its website, using the customer's name and company logo.

12. Warranty and compensation

12.1. The customer must submit any complaints in writing immediately, and in any case within three days of the agency providing the service, stating the reasons for the complaint. In the event of justified and timely complaints, the customer is only entitled to have the service improved or replaced by the agency.

12.2. In the event of a justified complaint, the defects shall be remedied within a reasonable period of time, whereby the customer shall enable the Agency to take all measures necessary for investigation and rectification of the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high costs for the Agency.

12.3. The reversal of the burden of proof pursuant to § 924 ABGB (Austrian Civil Code) at the expense of the Agency is excluded. The existence of the defect at the time of delivery, the time of discovery of the defect, and the timeliness of the complaint must be proven by the customer.

12.4. Claims for damages by the customer, in particular due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential damage due to defects, or tort are excluded, unless they are based on intent or gross negligence on the part of the Agency.

12.5. Any claims for damages may only be asserted within six months of becoming aware of the damage.

12.6. Claims for damages are limited to the order value excluding taxes.

13. Liability

13.1. The Agency shall perform the work assigned to it in accordance with generally accepted legal principles and shall inform the Client in good time of any risks that are apparent to it. Any liability on the part of the Agency for claims brought against the customer on the basis of the advertising measure (the use of a trademark) is expressly excluded if the Agency has fulfilled its duty to inform; in particular, the Agency shall not be liable for legal costs, the customer's own legal fees or the costs of publishing judgments, nor for any claims for damages or similar claims by third parties.

13.2. Within the scope of the statutory provisions, the Agency shall only be liable for damages if intent or gross negligence on its part can be proven. Liability for slight negligence is excluded. The existence of gross negligence must be proven by the injured party.

14. Applicable law

The legal relationship between the customer and the agency shall be governed exclusively by Austrian law, excluding international referral rules. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

15. Place of performance and jurisdiction

15.1. The place of performance is the registered office of the agency.

15.2. The place of jurisdiction for all disputes arising directly between the Agency and the Customer shall be the Austrian court with local and subject-matter jurisdiction for the Agency's registered office.