general terms and conditions
digital now marketing gmbh, sonnenweg 6, 2223 hohenruppersdorf
all further legal information on the company can be found at https://digital-now.com/impressum/
validity, conclusion of contract
digital now marketing gmbh (hereinafter referred to as "agency") provides its services exclusively on the basis of the following general terms and conditions (gtc). these apply to all legal relationships between the agency and the customer, even if no express reference is made to them. the gtc apply exclusively to legal relationships with companies, i.e. b2b.
the version valid at the time of the conclusion of the contract shall apply. deviations from these and other supplementary agreements with the customer shall only be effective if they are confirmed in writing by the agency.
any terms and conditions of the customer are not accepted, even if known, unless otherwise expressly agreed in writing in individual cases. the agency expressly objects to the customer's terms and conditions. no further objection to the customer's terms and conditions by the agency is required.
the customer will be notified of changes to the general terms and conditions and these will be deemed to have been agreed if the customer does not object to the amended general terms and conditions in writing within 14 days; the customer will be expressly informed of the significance of the silence and of the specifically amended clauses in the notification. this fiction of consent does not apply to changes to essential service contents and fees.
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 which comes as close as possible to the meaning and purpose of the invalid provision.
the agency's offers are subject to change and non-binding.
social media channels
concept and idea protection
if the potential client has already invited the agency to prepare a concept in advance and the agency complies with this invitation before the conclusion of the main contract, the following rule applies:
the potential client and the agency enter into a contractual relationship ("pitching contract") as early as the invitation and the acceptance of the invitation by the agency. this contract is also based on the terms and conditions.
the potential client acknowledges that the agency is already providing cost-intensive preliminary services with the concept development, although it has not yet assumed any performance obligations itself.
the concept is protected by copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. the potential client is not permitted to use or edit these parts without the consent of the agency, if only because of copyright law.
the concept also contains ideas relevant to advertising that do not reach the level of a work and thus do not enjoy the protection of copyright law. these ideas are at the beginning of every creative process and can be defined as the spark that ignites everything that is subsequently produced 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. in particular, advertising slogans, advertising texts, graphics and illustrations, advertising media, etc. are regarded as ideas within the meaning of this agreement, even if they do not reach the level of a work.
the potential client undertakes to refrain from commercially exploiting the creative advertising ideas presented by the agency as part of the concept or having them exploited or using them or having them used outside the corrective of a main contract to be concluded at a later date.
if the potential client is of the opinion that ideas were presented to him by the agency which he had already thought of before the presentation, he must inform the agency of this by e-mail within 14 days of the day of the presentation, citing evidence which allows a time allocation.
in the opposite case, the parties to the contract assume that the agency has presented the potential customer with an idea that is new to him. if the idea is used by the customer, it must be assumed that the agency has made a profit.
the potential client may be released from its obligations under this point by paying an appropriate compensation plus 20 % sales tax. the release only takes effect once the agency has received full payment of the compensation.
scope of services, order processing and customer's duty to cooperate
the scope of the services to be provided results from 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 service content require written confirmation by the agency. within the framework specified by the client, the agency has freedom of design in the fulfillment of the order.
all services provided by the agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) must be checked by the client and approved by the client within three working days of receipt by the client. if this period expires without feedback from the client, they are deemed to have been approved by the client.
the client shall provide the agency with timely and complete access to all information and documents that are necessary for the provision of the service. the client shall inform the agency of all circumstances that are of significance for the execution of the order, even if these only become known during the execution of the order. the client shall bear the costs incurred as a result of work having to be repeated or delayed by the agency as a result of incorrect, incomplete or subsequently changed information provided by the client.
the client is also obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademarks, brand rights or other third-party rights (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. in the event of merely slight negligence or after fulfilling its duty to warn, the agency shall not be liable - at least in its internal relationship with the customer - for any infringement of such third-party rights by the documents provided. if a claim is made against the agency by a third party due to such an infringement, the customer shall indemnify and hold the agency harmless; the customer shall compensate the agency for all disadvantages incurred by the agency as a result of a claim by a third party, in particular the costs of appropriate legal representation. the customer undertakes to support the agency in the defense against any claims by third parties. the customer shall provide the agency with all documents for this purpose without being asked.
external services / commissioning of third parties
the agency is entitled, at its own discretion, to perform the service itself, to use competent third parties as vicarious agents in the provision of contractual services and/or to substitute such services ("external service").
the commissioning of third parties as part of an external service is carried out either in the agency's own name or in the name of the client, the latter after prior notification to the client. the agency will select this third party carefully and ensure that it has the necessary professional qualifications.
the client must enter into obligations towards third parties that have been named to the client and that extend beyond the term of the contract. this also applies expressly in the event of termination of the agency contract for good cause.
Unless expressly agreed as binding, delivery or performance deadlines are only approximate and non-binding. binding deadlines must be set out in writing or confirmed in writing by the agency.
if the agency's delivery/service is delayed for reasons for which it is not responsible, e.g. events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the performance obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. if such delays last for more than two months, the customer and the agency shall be entitled to withdraw from the contract.
if the agency is in default, the customer may only withdraw from the contract after setting the agency a reasonable grace period of at least 14 days in writing and this has expired without result. claims for damages by the customer due to non-performance or default are excluded, except in the case of proof of intent or gross negligence.
the agency is entitled to terminate the contract with immediate effect for good cause. good cause exists in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period of 14 days;
b) the customer continues to breach material obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.
c) there are justified concerns regarding the customer's creditworthiness and the customer neither makes advance payments at the agency's request nor provides suitable security prior to the agency's performance;
the client is entitled to terminate the contract for good cause without setting a grace period. good cause is deemed to exist in particular if the agency continues to violate material provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.
unless otherwise agreed, the agency's fee claim arises for each individual service as soon as it has been rendered. the agency is entitled to demand advance payments to cover its expenses. from an order volume with an (annual) budget of € 5,000.00, or those that extend over a longer period of time, the agency is entitled to issue interim invoices or advance invoices or to call for payments on account.
the fee is understood to be a net fee plus value added tax at the statutory rate. in the absence of an agreement in individual cases, the agency is entitled to a fee at the usual market rate for the services rendered and the transfer of copyright and trademark rights of use.
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.
the agency's cost estimates are non-binding. if it is foreseeable that the actual costs will exceed the agency's written estimate by more than 15 %, the agency will inform the customer of the higher costs. the cost overrun is deemed to have been approved by the client if the client does not object in writing within three working days of this notification and at the same time announces more cost-effective alternatives. if the cost overrun is up to 15 %, a separate notification is not required. this cost estimate overrun is deemed to have been approved by the client from the outset.
if the client unilaterally changes or cancels work commissioned without involving the agency - without prejudice to the agency's other ongoing support - the client must reimburse the agency for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. if the termination is not due to gross negligence or willful breach of duty on the part of the agency, the client must also reimburse the agency for the entire fee (commission) agreed for this order, whereby the offsetting remuneration under section 1168 of the german civil code is excluded. furthermore, the agency shall be indemnified and held harmless against any claims by third parties, in particular by the agency's contractors. upon payment of the fee, the client shall not acquire any rights of use to work already performed; concepts, drafts and other documents that have not been executed must be returned to the agency immediately.
payment, retention of title
the fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. this also applies to the charging of all cash outlays and other expenses. the goods delivered by the agency remain the property of the agency until full payment of the fee, including all ancillary liabilities.
in the event of default of payment by the customer, the statutory default interest shall apply in the amount applicable to business transactions. furthermore, in the event of default of payment, the customer undertakes to reimburse the agency for the dunning and collection expenses incurred, insofar as they are necessary for appropriate legal prosecution. in any case, this includes the costs of two reminder letters in the usual market amount of currently at least € 20.00 per reminder as well as a reminder letter from a lawyer commissioned with the collection. the assertion of further rights and claims remains unaffected by this.
in the event of default of payment by the customer, the agency may demand immediate payment of all services and partial services rendered under other contracts concluded with the customer.
furthermore, the agency is not obliged to provide further services until the outstanding amount has been paid (right of retention). the obligation to pay the fee remains unaffected.
if payment in installments has been agreed, the agency reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadline).
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 or has been established by a court.
property rights and copyright
all services of the agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, remain the property of the agency, as do the individual workpieces and design originals, 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 of use for the agreed purpose. unless otherwise agreed, however, the client may only use the agency's services in austria. the acquisition of rights of use and exploitation of the agency's services requires full payment of the fees invoiced by the agency. if the client uses the agency's services before this point in time, this use is based on a loan relationship that can be revoked at any time.
changes or processing of the agency's services, in particular their further development by the client or by third parties working for the client, are only permitted with the express consent of the agency and - insofar as the services are protected by copyright - of the copyright holder. the surrender of all so-called "open files" is therefore expressly not part of the contract. the agency is not obliged to surrender them. "the agency is not obliged to surrender them. this means that the client has no legal claim to them without the contractual assignment of the rights of use, including for "electronic works".
the agency's consent is required for the use of the agency's services that goes beyond the originally agreed purpose and scope of use, regardless of whether this service is protected by copyright. the agency and the copyright holder are entitled to separate appropriate remuneration for this.
the agency's consent is also required for the use of the agency's services or advertising materials for which the agency has developed conceptual or design templates, regardless of whether these services are protected by copyright or not, once the agency contract has expired.
the agency is entitled to the full agency fee agreed in the expired contract in the 1st year after the end of the contract for use in accordance with paragraph 4. in the 2nd or 3rd year after the expiry of the contract, the agency is only entitled to half or a quarter of the fee agreed in the contract. from the 4th year after the end of the contract, no agency fee is payable.
the client shall be liable to the agency for any unlawful use in double the amount of the reasonable fee for such use.
the agency is entitled to refer to the agency and, if applicable, to the author on all advertising media and in all advertising measures, without the customer being entitled to any remuneration for this.
subject to written revocation by the customer, which is possible at any time, the agency is entitled to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its internet website by name and company logo (reference notice).
the customer must report any defects immediately, in any case within eight days of delivery/performance by the agency, hidden defects within eight days of their discovery, in writing, describing the defect; otherwise the service shall be deemed approved. in this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
in the event of justified and timely notification of defects, the customer has the right to improvement or replacement of the delivery/service by the agency. the agency shall remedy the defects within a reasonable period of time, whereby the customer shall enable the agency to take all measures necessary to investigate and remedy the defects. the agency is entitled to refuse to improve the service if this is impossible or involves a disproportionately high expense for the agency. in this case, the customer is entitled to the statutory rights of conversion or reduction. in the case of improvement, it is the responsibility of the client to transfer the defective (physical) item at his own expense.
it is also the responsibility of the client to check the legal admissibility of the service, in particular with regard to competition, trademark, copyright and administrative law. the agency is only obliged to carry out a rough check of legal admissibility. in the event of slight negligence or after fulfilling any duty to warn the client, the agency is not liable for the legal admissibility of content if this has been specified or approved by the client.
the warranty period is six months from delivery/performance. the right of recourse against the agency pursuant to section 933b (1) agbg expires one year after delivery/performance. the customer is not entitled to withhold payments due to defects. the presumption provision of section 924 agbg is excluded.
liability and product liability
in cases of slight negligence, liability of the agency and its employees, contractors or other vicarious agents ("people") for damage to the customer's property or financial loss is excluded, regardless of whether it concerns direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. the injured party must prove the existence of gross negligence. insofar as the agency's liability is excluded or limited, this also applies to the personal liability of its "employees".
any liability of the agency for claims made against the client on the basis of the service provided by the agency (e.g. advertising measure) is expressly excluded if the agency has complied with its duty of disclosure or such a duty was not recognizable to it, whereby slight negligence is not detrimental. in particular, the agency is not liable for legal costs, the client's own legal fees or the costs of publication of judgments or for any claims for damages or other claims by third parties; the client must indemnify and hold the agency harmless in this respect.
claims for damages by the customer expire six months after knowledge of the damage, but in any case after three years from the agency's act of infringement. claims for damages are limited to the net order value.
the contract and all reciprocal rights and obligations and claims between the agency and the customer derived from it are subject to austrian substantive law to the exclusion of its conflict of law rules and to the exclusion of the un-kaufrecht.
place of performance and jurisdiction
the place of performance is the agency's registered office. the risk is transferred to the customer upon handover.
the place of jurisdiction for all legal disputes arising between the agency and the customer in connection with this contractual relationship shall be the court having subject-matter jurisdiction for the agency's registered office. notwithstanding this, the agency shall be entitled to sue the customer at the customer's general place of jurisdiction.
to the extent that this agreement refers to natural persons only in the masculine form, it refers to women and men in the same way. when applying the term to specific natural persons, the respective gender-specific form must be used.
all topics relevant to data protection are described in the data protection declaration of digital now gmbh and are considered part of these terms and conditions. https://digital-now.com/datenschutzerklaerung-digital-now-gmbh/
declarations of consent
the customer agrees that his personal data, namely name/company, profession, date of birth, company book number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, uid number, automatically collected, stored and processed for the purpose of servicing the customer and for our own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or previous business relationship with the customer (reference reference).
the client agrees that electronic mail may be sent to him for advertising purposes until revoked.
this consent can be revoked at any time in writing by e-mail or letter to digital now marketing gmbh, sonnenweg 6, 2223 hohenruppersdorf - e-mail: firstname.lastname@example.org.
should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract.
the invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. the above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.
status january 2022 - digital now marketing gmbh