GENERAL TERMS AND CONDITIONS

of

Meta Medium e.U. 

Business Register Number: 468618w

Rechte Bahngasse 32-30 / 14 1030 Vienna, Austria 

office@metamedium.io

 

0.1 This agreement is made between Meta Medium e.U. and any potential Client.

 

0.2 Meta Medium e.U. is listed as a sole proprietorship in the Austrian chamber of commerce,

Any further information about the place of jurisdiction and applicable law is found in the chambers

registry under the above mentioned business register number.

 

  1. Applicability; Conclusion of contract

 

1.1 Meta Medium e.U.

(mentioned hereinafter as the “Agency”) shall provide its products and services

exclusively on the legally binding basis of the following General Terms and Conditions (GTC).

They shall apply to all legal relationships between the Agency and the Client, even if they are not

expressly referred to. The GTC shall exclusively apply to legal transactions with

entrepreneurs, businesses and non-profit organisations, i.e. B2B transactions.

 

1.2 The version applicable at the time of conclusion of a contract shall be relevant.

Deviations from these GTC and other supplementary agreements with the Client

shall only be effective if they have been confirmed by the Agency in writing.

 

1.3 Terms and conditions of the Client, if any, shall not be accepted, even if the

Agency knows them, unless expressly agreed otherwise in writing on a case-by-case

basis. The Agency expressly objects to GTC of the Client. No other objection of

the Agency to the Client´s GTC shall be required.

 

1.4 The Client shall be informed about amendments to the GTC; they shall be deemed

agreed unless the Client objects to the amended GTC in writing within 14 days; in

the information the Client will be expressly informed about the consequence of

silence on his part.

 

1.5 If any provisions of these General Terms and Conditions are ineffective, the binding

nature of the remaining provisions and the contracts concluded on the basis of the

same shall not be affected. The ineffective provision shall be replaced by an

effective provision which comes as close as possible to the meaning and purpose of

the ineffective one.

 

1.6 The Agency’s offers shall be subject to change without notice and non-binding.

 

2.Social Media Channels

 

Before an order is placed the Agency expressly points out to the Client that

providers of “social media channels” (e.g. Facebook, LinkedIn, Google; hereinafter

referred to as Providers), in their terms and conditions of use, reserve the right to

reject or remove advertisements or promotional appearances for any reason

whatsoever. Accordingly, Providers are not obliged to forward content or information

to users. Thus, there is a risk, which cannot be calculated by the Agency, that

advertisements or promotional appearances are removed for no reason. Although in

the case of a complaint of a different user Providers do offer an opportunity to reply,

the content will be immediately removed also in that case. In that case restoring the

original, lawful condition may take some time. The Agency works on the basis of the

Providers’ terms and conditions of use, on which it has no influence, and also makes

them the basis of Client orders. By placing the order the Client expressly

acknowledges that those terms and conditions of use (co-)determine the rights and

duties of a contractual relationship, if any. The Agency intends to execute the

Client´s order to the best of its knowledge and belief and to comply with the

policies of “social media channels”. Due to the terms and conditions of use that are

currently applicable and the fact that every user can easily allege a violation of the

law with the aim that contents will be removed, the Agency cannot guarantee that

the ordered campaign(s) can be retrieved at any time.

 

  1. Protection of Concepts and Ideas

 

If a potential Client has already invited the Agency beforehand to develop a

concept and if the Agency accepts this invitation prior to conclusion of the principal

contract, the following shall apply:

 

3.1 By the invitation and acceptance of the invitation by the Agency the potential

Client and the Agency enter into a contractual relationship (“pitching contract”).

That contract will also be based on the GTC.

 

3.2 The potential Client acknowledges that already by developing a concept the

Agency will render cost-intensive services, even though the Client himself has

not taken on any performance duties yet.

 

3.3 To the extent that they reach the level of originality required for copyright

protection the linguistic and graphic parts of the concept are protected by the

Austrian Copyright Act [ Urheberrechtsgesetz ]. The potential Client is not

permitted to use or edit those parts without the Agency’s consent due to the

Austrian Copyright Act alone.

 

3.4 Furthermore, the concept contains ideas that are relevant to advertising which do

not reach the level of originality required for copyright protection and are thus not

protected by the Austrian Copyright Act. Such ideas are generated at the beginning

of every creative process and may be defined as the creative spark for all

subsequent work results and, thus, as the origin of the marketing strategy.

Accordingly, those elements of the concept are protected which are unique and

characterise the marketing strategy. For the purpose of this agreement ideas shall

in particular mean advertising slogans, advertising texts, graphics and illustrations,

advertising means etc., even if they do not reach the level of originality required

for copyright protection.

 

3.5 The potential Client undertakes not to exploit or have exploited commercially

and/or use or have used the creative advertising ideas which the Agency presented

as part of the concept in any context other than the corrective of a principal

contract to be concluded at a later time.

 

3.6 If the potential Client is of the opinion that the Agency presented ideas to him

which he already had before the presentation, he shall notify the Agency thereof

via e-mail within 14 days of the day of the presentation and include means of

evidence which allow a chronological allocation.

 

3.7 Otherwise the Parties will assume that the Agency has presented an idea to the

potential Client which is new to him. If the Client uses the idea, it has to be

assumed that the Agency received remuneration therefor.

 

3.8 The potential Client may be released from his duties under this Clause if he pays

a reasonable compensation plus 20% VAT. Such release shall become effective only

after receipt of the full compensation payment by the Agency.

 

  1. Scope of services; Order processing; Client´s duties to co-operate

 

4.1 The scope of the services to be rendered shall be based on the specifications of the

Agency Contract or the Agency’s acknowledgment of order, if any, and the briefing

report, if any (“Offer Documents”). Subsequent modifications of the services shall be

subject to the Agency’s written confirmation. When executing the order the Agency

shall be free in its discretion within the framework specified by the Client.

 

4.2 All services of the Agency (including but not limited to all preliminary designs,

sketches, final drawings, proofs, blueprints, copies, coloured prints and electronic

files) shall be checked by the Client and released within three working days of

receipt by the Client. If they are not released within that period, they shall be

deemed approved by the Client. After that period has expired with no reply from

the Client they shall be deemed accepted by the same.

 

4.3 The Client shall make accessible to the Agency completely and in time all

information and documents required for rendering the service. The Client shall

notify the Agency of all circumstances that are relevant to execution of the order,

even if they become known only in the course of execution of the order. The

Client shall bear the costs incurred due to the fact that work has to be done again

by the Agency or is delayed because of his incorrect, incomplete or subsequently

modified specifications.

 

4.4 In addition, the Client is obliged to clear the documents made available by him

for execution of the order (photos, logos, etc.) for potential copyrights, trademark

rights, marks or other rights of third parties (rights clearance) and guarantees that

the documents are free from rights of third parties and may therefore be used for the

desired purpose. In the case of merely slight negligence or if it has fulfilled its duty

to warn the Client, the Agency shall not be liable (at least as regards the

relationship between the Agency and the Client) for an infringement of such rights

of third parties by documents made available by the Client. If the Agency is held

liable for an infringement of such rights, the Client shall indemnify and hold

harmless the Agency and shall compensate the Agency for any and all disadvantages

suffered by it due to third-party claims, including costs of reasonable legal

representation. The Client undertakes to support the Agency in defending claims

of third parties, if any. For this purpose the Client shall provide the Agency with

all documents without request.

 

5.External services; Commissioning of third parties

 

5.1 The Agency shall be entitled at its own discretion to render the services itself, to

employ expert third parties as agents [ Erfüllungsgehilfen as defined by Section 1313a

of the Austrian General Civil Code [ABGB]] and/or to commission a third party to

render such services (“External Service”).

 

5.2 Commissioning of third parties in connection with an External Service shall be done

either in the Agency’s own name or in the name of the Client. The Agency shall

select the relevant third party with care and ensure that it is appropriately qualified.

 

5.3 If the Agency commissions necessary or agreed External Services, the relevant

contractors shall not be considered agents [ Erfüllungsgehilfen ] of the Agency.

 

5.4 The Client shall assume obligations vis-à-vis third parties which survive the

contract. This shall expressly apply also in the case of termination of the agency

contract for cause.

 

6.Deadlines

 

6.1 Unless expressly agreed to be binding, delivery or service periods stated shall only be

approximate and non-binding. Binding agreements on deadlines shall be recorded in

writing or confirmed by the Agency in writing.

 

6.2 If the delivery/service of the Agency is delayed for reasons for which the Agency is

not responsible, such as, e.g. events of force majeure or other unforeseeable events

that cannot be prevented by reasonable means, the service obligations shall be

suspended for the duration and to the extent of the impediment and the deadlines

shall be extended accordingly. If such delays continue for more than two months, the

Client and the Agency shall be entitled to rescind the contract.

 

6.3 If the Agency is in default, the Client may only rescind the contract after having

granted the Agency a reasonable grace period of at least 14 days in writing and after

such period has expired fruitlessly. Claims of the Client for damages on the ground

of non-performance or default shall be excluded, unless intent or gross negligence

can be proved.

 

7.Early termination

 

7.1 The Agency shall be entitled to terminate the contract for cause with immediate

effect. Causes shall include but not be limited to situations where

 

(a) provision of a service becomes impossible for reasons for which the Client is

responsible or is further delayed even though the Client was granted a grace

period of 14 days;

 

(b) the Client continues to violate material obligations under this contract, such as,

e.g. the obligation to pay an amount payment of which has been demanded or duties

to co-operate, despite a written warning and having been granted a grace period of

14 days.

 

(c) legitimate concerns exist regarding the Client´s credit standing and, upon the

Agency’s request, the Client fails to make advance payments or to furnish suitable

security prior to provision of the service by the Agency;

 

7.2 The Client shall be entitled to terminate the contract for cause without having to

grant a grace period. A cause shall be, in particular, where the Agency repeatedly

violates material provisions of this contract despite a written warning and having

been granted a grace period of at least 14 days to remedy the breach of the contract.

 

8.Fees

 

8.1 Unless otherwise agreed the Agency’s entitlement to fees shall arise for any specific

service once the same has been rendered. The Agency shall be entitled to ask for

advances to cover its expenses.

 

8.2 The fees shall be stated as net fees plus statutory value added tax if applicable.

If in a specific case no agreement on fees has been concluded, the Agency shall be

entitled to fees at market rates for the services rendered and for transfer of

copyrights and marks.

 

8.3 All services of the Agency which are not expressly covered by the agreed fees shall be

paid for separately. All cash expenses incurred by the Agency shall be reimbursed by

the Client.

 

8.4 Cost estimates provided by the Agency shall be non-binding. If it becomes clear that

the actual costs will exceed the Agency’s written cost estimate by more than 15 per

cent, the Agency shall advise the Client of such higher costs. The increase in costs

shall be deemed accepted by the Client if the Client does not object to such

increase in writing within three working days of the advice and states cheaper

alternatives at the same time. Cost increases of up to 15 per cent shall not have to

be advised separately. Such a deviation from the cost estimate shall be deemed

accepted by the Client from the beginning.

 

8.5 If the Client unilaterally modifies or cancels work ordered without involving the

Agency and notwithstanding other regular support from the same, the Client shall

pay the Agency for the services provided by then according to the agreement on fees

and shall reimburse all costs incurred. Unless work is cancelled on the ground of a

breach of the Agency’s duties by gross negligence or will

ful intent, the Client shall, in addition, pay the Agency the total fee (commission) agreed for that

contract, and the allowance [ Anrechnungsvergütung ] as defined in Section

1168 of the Austrian Civil Code [ABGB] shall be excluded. Furthermore, the Agency shall be

indemnified and held harmless from and against any third-party claims, in particular

of the Agency’s contractors. By payment of the fees the Client shall acquire no

rights to use work already carried out; concepts, drafts and other documents which

were not implemented shall rather be returned to the Agency without delay.

 

  1. Payment; Retention of title

 

9.1 The fee shall be due for payment immediately upon receipt of the invoice without

any deductions, unless special payment terms are agreed in writing on a case-by-case

basis. The same shall apply to all cash and other expenses charged. The Agency shall

retain title to the goods delivered by it until full payment of the fee including all

ancillary liabilities.

 

9.2 In the case of payment default of the Client statutory default interest at the rate

applicable to business-to-business transactions will be charged. In the case of default

the Client also undertakes to reimburse the Agency the dunning and collection

charges incurred to the extent they are necessary for appropriate pursuit of the

claim. This shall in any case include the costs of two dunning letters at the market

fee of currently at least EUR 20 per letter plus those of one dunning letter of a

lawyer who has been instructed to collect the receivables outstanding. Assertion of

further rights and claims shall remain unaffected.

 

9.3 If the Client is in default of payment, the Agency may call for immediate payment

of services or partial services rendered under different contracts concluded with the

Client.

 

9.4 Furthermore, the Agency is not obliged to render other services until payment of the

amount outstanding (right to withhold services). The obligation to pay the fees shall

not be affected.

 

9.5 If payment by installments has been agreed, the Agency reserves the right to demand

immediate payment of the total debt outstanding if installments or ancillary claims are not

paid in time (acceleration clause).

 

9.6 The Client shall not be entitled to set off claims of the Agency against his own

claims unless the Client´s claim has been recognised by the Agency in writing or

ascertained by court.

 

  1. Title and copyright

 

10.1 The Agency shall retain title to all services of the Agency, including services in

connection with presentations (e.g., suggestions, ideas, sketches, preliminary

designs, scribbles, final drawings, concepts, negatives, slides), including parts

thereof, as well as the individual workpieces and original designs and the Agency

may demand at any time, in particular in the case of termination of the contractual

relationship, that they be returned to it. By paying the fees the Client shall

acquire the right to use the services for the designated purpose agreed. Unless

otherwise agreed the Client shall, however, use the Agency’s services exclusively

in Austria. Acquisition of rights to use and exploit the Agency’s services shall in any

case be subject to full payment of the fees charged by the Agency for the same. If

the Client uses the Agency’s services already prior to that time, such use shall be

based on a loan relationship that may be revoked at any time.

 

10.2 Modifications and/or editing of services of the Agency, including but not limited to

further development of the same by the Client or third parties working for the

Client, shall only be permitted with the express consent of the Agency and, to the

extent that services are protected by copyright, of the author.

 

10.3 Use of the Agency’s services beyond the originally agreed purpose and scope of use

shall be subject to the Agency’s consent irrespective of whether such service is

protected by copyright or not. In consideration thereof the Agency and the author

shall be entitled to a separate reasonable fee.

 

10.4 After expiration of the Agency Agreement use of services of the Agency and/or

advertising means for which the Agency developed concepts or designs shall also be

subject to the Agency’s consent irrespective of whether the service is protected by

copyright or not.

 

10.5 In the first year after termination of the contract the Agency shall be entitled to the

full agency fees agreed in the expired contract for any use described in paragraph 4.

In the second and third year after expiration of the contract the Agency shall only be

entitled to half or one fourth of the consideration agreed in the contract. From the

fourth year after termination of the contract no agency fees shall be payable.

 

10.6 The Client shall be liable to the Agency for any unlawful use in the amount of

twice the reasonable fees for such use.

 

  1. Identification marks

 

11.1 The Agency shall be entitled to make reference to the Agency and the author, if

applicable, on all advertising means and in any advertising and promotion measures,

without the Client being entitled to any payment in this respect.

 

11.2 The Agency shall be entitled to make reference to its current or former business

relationship with the Client on its own advertising media, including but not

limited to its website, by referring to the Client´s business name and business

logo, with the Client having the right to revoke his consent in writing at any time.

 

  1. Warranty

 

12.1 The Client shall notify any defects immediately and in any case within eight days

of delivery/provision of the service by the Agency and hidden defects not later than

eight days after they were identified in writing including a description of the defect;

otherwise the service shall be deemed accepted. In that case assertion of any

warranty claims or claims for damages as well as the right to assert claims on account

of mistake shall be excluded.

 

12.2 In the case of a justified and timely notification of defects the Client shall be

entitled to improvement or replacement of the delivery/service by the Agency. The

Agency shall repair the defects within a reasonable period of time and the Client

shall enable the Agency to take all measures which are necessary for examination and

repair of the defects. The Agency shall be entitled to refuse improvement of the

service if such improvement is impossible or if the Agency were to incur

disproportionately high costs. In that case the Client shall be entitled to cancel

the contract or get a fee reduction as provided for by law. In the case of

improvement the Client shall send the defective (physical) item at his cost.

 

12.3 The Client shall also be obliged to examine the service for its lawfulness,

including but not limited to competition law, trademark law, copyright law and

administrative law. The Agency is obliged only to roughly examine lawfulness. In the

case of slight negligence or after it has fulfilled its duty to warn the Client, if any,

the Agency shall not be liable for lawfulness of contents if they were advised or

accepted by the Client.

 

12.4 The warranty period shall be six months as of delivery / service. The right of recourse

to the Agency as defined in Section 933 b (1)ABGB shall be forfeited one year after

delivery/service. The Client shall not be entitled to withhold payments on the

ground of complaints. The presumption rule [ Vermutungsregel ] of Section 924 ABGB

shall be excluded.

 

  1. Liability and product liability

 

13.1 In cases of slight negligence liability of the Agency and its employees, contractors or

other agents [translator’s note: Erfüllungsgehilfen as defined by Section 1313a ABGB]

(“People”) for damage to property or pecuniary loss suffered by the Client shall be

excluded, be it indirect or direct damage, lost profit or consequential damage

resulting from a defect, damage due to default, impossibility, breach of obligation,

culpa in contrahendo or due to defective or incomplete performance. The harmed

party shall have to prove gross negligence. To the extent that the Agency’s liability is

excluded or limited this shall also apply to personal liability of its People.

 

13.2 Any liability of the Agency for claims asserted vis-à-vis the Client on the ground of

services rendered by the Agency (e.g. advertising and promotion measures) shall be

expressly excluded, provided that the Agency complied with its duty to inform or if it

was unable to see such a duty, even due to slight negligence. The Agency shall, in

particular, not be liable for costs of legal proceedings, lawyer’s fees of the Client

or costs of publication of judgments or for claims for damages, if any, or other claims

of third parties; the Client shall indemnify and hold harmless the Agency in this

respect.

 

13.3 Claims of the Client for damages shall be forfeited six months after knowledge of

the damage and in any case three years after the Agency’s infringement. Claims for

damages shall be limited to the net contract value.

 

  1. Data protection (visual emphasis according to court rulings)

 

The Client agrees that his personal data, namely name, occupation, date of birth,

Business Register Number, powers to represent the company, contact person, business

address and other addresses of the Client, phone number, fax number, e-mail

address, bank details, credit card details, VAT number) may be collected, stored and

processed electronically for the purpose of performance of the contract and support

of the Client and for the Agency’s own advertising and promotion purposes, for

example by sending him offers, advertising brochures or newsletters (in hard copy or

electronic form) and for the purpose of making reference to the current of former

business relationship with the Client. The Client agrees to be sent electronic

mail for advertising purposes until further notice.

Such consent may be revoked in writing via e-mail, fax or letter to the contact

details stated in the header of these GTC at any time.

 

  1. Applicable law

 

The Agreement and all mutual rights and duties resulting therefrom as well as any

claims between the Agency and the Client shall be subject to Austrian substantive

law, and its conflicts of laws rules and UN Sales Law shall be excluded.

 

  1. Place of performance and place of jurisdiction

 

16.1 The place of performance shall be the registered office of the Agency or the

Client – whichever contributes to a more successful collaboration. In the case that

goods are shipped the risk shall pass to the Client once the Agency has delivered

the goods to the carrier chosen by it.

 

16.2 The agreed place of jurisdiction for all legal disputes arising between the Agency and

Client in connection with this contractual relationship shall be the court having

jurisdiction over the subject-matter and the Agency’s registered office.

Notwithstanding the foregoing the Agency shall be entitled to sue the Client at his

general place of jurisdiction.

 

16.3 If only the masculine form is used herein for describing natural persons it shall

equally refer to women and men. If a specific person is referred to, the respective

gender-specific form shall be used.

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