General Terms and Conditions
Version dated 25 November 2025
Language and Legal Validity
These General Terms and Conditions are a non-binding automatic translation of the original German “Allgemeine Geschäftsbedingungen” (“AGB”) of Werbeberg Digital Communications GmbH & Co KG. They are provided for convenience only and do not have any legal effect. In the event of any discrepancies or inconsistencies, solely the German-language AGB in their current version shall be legally binding and decisive for the interpretation of the parties’ rights and obligations. For the German-language AGB please change Language in the top menue.
1. Scope and Conclusion of Contract
1.1. Werbeberg Digital Communications GmbH & Co KG (hereinafter the “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 Client, even if no explicit reference is made to them. The GTC apply exclusively to legal relationships with entrepreneurs (B2B).
1.2. The version valid at the time the contract is concluded shall be decisive. Deviations from these GTC, as well as other supplementary agreements with the Client, shall only be effective if confirmed in writing by the Agency.
1.3. Any general terms and conditions of the Client shall not be accepted, even if known, unless expressly and in writing agreed otherwise in an individual case. The Agency expressly objects to the Client’s general terms and conditions. No further objection to the Client’s GTC by the Agency shall be required.
1.4. Amendments to the GTC will be communicated to the Client and shall be deemed agreed if the Client does not object to the amended GTC in writing within 14 days; the Client will be expressly informed of the significance of silence in the notification.
1.5. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and of contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid one which comes closest to its meaning and purpose.
1.6. The Agency’s offers are non-binding and subject to change.
2. Social Media Channels
The Agency expressly points out to the Client prior to placing an order that the providers of “social media channels” (e.g. Facebook or Instagram, hereinafter briefly: providers) reserve the right in their terms of use to reject or remove advertising and appearances for any reason whatsoever. The providers are thus not obliged to forward content and information to users. There is therefore a risk, which cannot be calculated by the Agency, that advertisements and appearances will be removed without cause. In the event of a complaint by another user, the providers do allow the possibility of a counterstatement, but the content is nevertheless removed immediately. Restoring the original lawful state may take some time. The Agency works on the basis of these providers’ terms of use, over which it has no influence, and also bases the Client’s assignment on them.
2.1. By placing the order, the Client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship.
2.2. The Agency intends to execute the Client’s assignment to the best of its knowledge and belief and to comply with the guidelines of social media channels. However, due to the currently applicable terms of use and the simple possibility for any user to allege legal violations and thereby obtain the removal of content, the Agency cannot be held liable for ensuring that the commissioned campaign is available at all times.
3. Protection of Concepts and Ideas
If the potential Client 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 regulation shall apply:
3.1. By the very act of invitation and acceptance of the invitation by the Agency, the potential Client and the Agency enter into a contractual relationship (“pitch contract”). This contract is also subject to these GTC.
3.2. The potential Client acknowledges that the Agency incurs cost-intensive preliminary expenditures by developing the concept, even though the potential Client has not yet assumed any performance obligations.
3.3. The concept, in its linguistic and graphic parts, is subject to the protection of copyright law to the extent that it reaches the threshold of originality. Use and modification of these parts without the Agency’s consent is not permitted to the potential Client on the basis of copyright law alone.
3.4. The concept also contains advertising-related ideas which do not reach the threshold of originality and therefore do not enjoy protection under copyright law. These ideas stand at the beginning of every creative process and can be defined as the starting point of everything subsequently created and thus as the origin of marketing strategies. 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, ideas particularly include advertising slogans, advertising texts, graphics and illustrations, advertising materials, scripts and storyboards, 3D models, click dummies, code blocks, etc., even if they do not reach the threshold of originality.
3.5. The potential Client undertakes to refrain from exploiting economically or having exploited economically, or using or having used, the creative advertising ideas presented by the Agency within the scope of the concept outside the framework of a subsequently concluded main contract.
3.6. If the potential Client believes that ideas presented to him by the Agency are ideas he had already developed prior to the presentation, he must notify the Agency of this in writing (by e-mail or letter) within 14 days of the date of presentation, stating evidence that allows a chronological assignment.
3.7. In the absence of such notification, the contractual parties assume that the Agency has presented the potential Client with a new idea. If the Client uses this idea, it shall be assumed that the Agency has thereby earned such use.
3.8. The potential Client may free himself from his obligations under this clause by paying a reasonable compensation plus 20% VAT. Such release shall only become effective upon full receipt of the compensation payment by the Agency.
4. Scope of Services, Order Processing and Client’s Duty to Cooperate
4.1. The scope of services to be provided results from the service description in the Agency contract or any order confirmation by the Agency and any briefing protocol (“offer documents”). Subsequent changes to the scope of services require written confirmation by the Agency. Within the framework specified by the Client, the Agency is free in the design and execution of the assignment.
4.2. All services provided by the Agency (in particular all drafts, sketches, final artwork, proofs, blueprints, copies, colour prints and electronic files) shall be checked by the Client and approved by him within three working days from their receipt. If this period expires without feedback from the Client, the services shall be deemed approved. If any defects occur after approval, in the sense of faulty graphic artefacts such as spelling or grammatical errors, the Agency shall be held harmless and indemnified, provided no physical defects in a product exist within the meaning of clause 13.1.
4.3. The Client shall make available to the Agency in good time and in full all information and documents required for the provision of the service. He shall inform the Agency of all circumstances relevant to the execution of the assignment, even if these only become known during the course of the assignment. The Client shall bear the costs incurred by the fact that work has to be repeated or delayed by the Agency as a result of incorrect, incomplete or subsequently changed information provided by the Client.
4.4. Furthermore, the Client is obliged to check the documents he provides for the execution of the assignment (photos, logos etc.) for possible copyrights, trademarks, labelling rights or other rights of third parties (rights clearance) and guarantees that the documents are free from third-party rights and can therefore be used for the intended purpose. In the event of slight negligence or in fulfilment of its duty to warn, the Agency shall in any event not be liable – in the internal relationship with the Client – for any infringement of such third-party rights by documents provided. If the Agency is claimed against by a third party on the grounds of such infringement of rights, the Client shall hold the Agency harmless and indemnified; he shall compensate any disadvantages suffered by the Agency due to third-party claims, in particular the costs of adequate legal representation. The Client undertakes to support the Agency in the defence against any third-party claims. For this purpose, the Client shall provide the Agency with all documents without being requested to do so.
5. Third-Party Services and Commissioning of Third Parties
5.1. At its own discretion, the Agency is entitled to perform the services itself, to use knowledgeable third parties as vicarious agents in the provision of contractual services and/or to substitute such services (“third-party services”).
5.2. The commissioning of third parties within the framework of third-party services shall take place either in the Agency’s own name or in the name of the Client. The Agency will carefully select such third party and ensure that it has the necessary professional qualification.
5.3. Insofar as the Agency commissions necessary or agreed third-party services, the respective contractors are not vicarious agents of the Agency.
5.4. The Client shall assume the Agency’s obligations towards third parties that extend beyond the term of the contract. This expressly applies also in the event of termination of the Agency contract for good cause.
6. Deadlines
6.1. Indicated delivery or performance deadlines shall only be approximate and non-binding unless expressly agreed as binding. Binding deadline arrangements must be recorded in writing or confirmed in writing by the Agency.
6.2. If delivery/performance by the Agency is delayed for reasons beyond its control, such as force majeure and other unforeseeable events that cannot be prevented by reasonable means, the performance obligations shall be suspended for the duration and extent of the hindrance and deadlines shall be extended accordingly. If such delays last longer than two months, both the Client and the Agency shall be entitled to withdraw from the contract.
6.3. If the Agency is in delay, the Client may only withdraw from the contract after having granted the Agency a reasonable grace period of at least 14 days in writing and such period has expired without result. Claims for damages by the Client due to non-performance or delay are excluded, except in case of proven intent or gross negligence.
7. Premature Termination
7.1. The Agency is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
a. the execution of the service becomes impossible for reasons attributable to the Client or is further delayed despite a grace period of 14 days;
b. the Client, despite written warning and a grace period of 14 days, repeatedly violates essential obligations under this contract, such as payment of a due amount or duties to cooperate;
c. justified concerns regarding the Client’s creditworthiness exist and, upon the Agency’s request, the Client neither makes advance payments nor provides appropriate security before performance by the Agency.
7.2. The Client is entitled to terminate the contract for important reasons without granting a grace period. An important reason exists in particular if the Agency, despite written warning and a reasonable grace period of at least 14 days to remedy the breach, repeatedly violates essential provisions of this contract.
8. Fee
8.1. In principle, the Agency’s entitlement to a fee arises for each individual service as soon as it has been provided. The Agency is entitled to demand advance payments to cover its expenses. For orders with a budget of € 10,000 or more, for orders from new Clients or for assignments extending over a longer period, the Agency is entitled to issue interim invoices or advance invoices or to call in instalment payments. This is carried out under a 50:50 arrangement, whereby the first half of the total fee is invoiced upon award of the contract and the second half upon completion of the project.
8.2. The fee is understood as net fee plus VAT at the statutory rate. In the absence of an agreement in an individual case, the Agency is entitled to a fee at the usual market rate for services rendered and the granting of copyright and trademark usage rights.
8.3. All services performed 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 by the Agency are non-binding. If it becomes foreseeable that the actual costs will exceed the costs estimated in writing by the Agency by more than 15%, the Agency will inform the Client of the higher costs. The cost overrun shall be deemed approved by the Client if he does not object in writing within three working days of this notification and at the same time indicates cheaper alternatives. In the case of a cost overrun of up to 15%, a separate notification is not required. This overrun is deemed approved by the Client from the outset.
8.5. If the Client unilaterally changes or cancels work commissioned without involving the Agency – without prejudice to any ongoing support by the Agency – he shall pay the Agency for services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the cancellation is due to grossly negligent or intentional breach of duty by the Agency, the Client shall furthermore reimburse the Agency the full fee (commission) agreed for this assignment, whereby the offsetting provision of § 1168 ABGB is excluded. Furthermore, the Agency shall be held harmless and indemnified with respect to any claims of third parties, in particular contractors of the Agency. By paying the fee, the Client does not acquire any usage rights to work already performed; concepts, drafts and other documents not executed shall be returned to the Agency without delay.
8.6. For weekend and public holiday work, a surcharge according to the currently valid rate sheet shall apply to all work. Discounts and other concessions cannot be applied to such work. For services that must mandatorily be performed between 7:00 p.m. and 6:00 a.m., an additional night surcharge according to the currently valid rate sheet shall be charged. Both cases apply exclusively if the Client requests immediate completion, if completion is only possible within these time windows, or if the critical infrastructure of a system is affected. In the event of critical system errors, the Client shall be informed directly. Chargeable work may then also be carried out without prior Client approval, unless agreed otherwise in writing.
9. Payment and Retention of Title
9.1. The fee is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed in writing in an individual case. This also applies to the re-invoicing of all cash expenses and other costs. Goods delivered by the Agency remain the property of the Agency until full payment of the fee including all ancillary claims.
9.2. In the event of payment default by the Client, the statutory default interest applicable to business transactions shall apply. Furthermore, in the event of default, the Client undertakes to reimburse the Agency for reminder and collection charges incurred as necessary for the appropriate legal enforcement of the claim. This includes at least the cost of two reminder letters at a customary market rate, as specified in the current rate sheet – per reminder – and one reminder letter from a lawyer engaged to collect the debt. The assertion of further rights and claims remains unaffected.
9.3. In the event of payment default by the Client, the Agency may declare all services and partial services provided under other contracts concluded with the Client immediately due and payable.
9.4. Furthermore, the Agency is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee remains unaffected.
9.5. If payment in instalments has been agreed, the Agency reserves the right, in the event that partial amounts or ancillary claims are not paid on time, to demand immediate payment of the entire outstanding debt (loss of term).
9.6. The Client is not entitled to set off his own claims against claims of the Agency, unless the Client’s claim has been acknowledged in writing by the Agency or has been established by a court.
10. Title and Copyright
10.1. All services of the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary designs, scribbles, final artwork, concepts, click dummies, code blocks), including individual parts thereof, as well as individual work pieces and original drafts, remain the property of the Agency and can 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 them for the agreed purpose. In the absence of an agreement to the contrary, the Client may use the Agency’s services exclusively in Austria. The acquisition of usage and exploitation rights to the Agency’s services is in any case subject to full payment of the fees invoiced by the Agency. If the Client uses the Agency’s services before this time, such use shall be based on a loan agreement that may be revoked at any time.
10.2. Changes and modifications to the Agency’s services, such as 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 – to the extent that the services are protected by copyright – of the author.
10.3. For any use of the Agency’s services that goes beyond the originally agreed purpose and scope of use, the Agency’s consent shall be required regardless of whether the service is protected by copyright. The Agency and the author are entitled to a separate appropriate remuneration for this.
10.4. For the use of Agency services or advertising materials for which the Agency has developed conceptual or design templates after termination of the Agency contract, the consent of the Agency is also required, regardless of whether this service is protected by copyright.
10.5. For uses pursuant to clause 10.4, the Agency shall be entitled in the first year after expiry of the contract to the full Agency fee agreed in the expired contract. In the second and third year after expiry of the contract, the Agency shall be entitled to half and one quarter of the agreed fee, respectively. From the fourth year after expiry of the contract, no Agency fee shall be payable.
10.6. The Client undertakes to pay the Agency a contractual penalty in the amount of twice the appropriate fee for each unlawful use.
11. Special Provisions for Software
11.1. Definitions
11.1.1. “Software” means individually developed applications, modules, interfaces, configurations, scripts and documentation by the Agency.
11.1.2. “Standard components” are pre-existing, non-client-specific components of the Agency (boilerplates, frameworks, libraries, tooling, DevOps scripts, recurring code patterns, know-how).
11.1.3. “Third-party software” comprises open-source software (OSS) and proprietary software of third parties.
11.1.4. “Production system” is the instance used by the Client for live operation; “staging/testing” are non-productive instances.
11.2. Scope of Services & Approach
11.2.1. Unless expressly agreed otherwise, services are provided using agile approaches (e.g. by means of backlogs and sprints).
11.2.2. The scope of services is defined on the basis of documents coordinated with the Client, in particular mockups, prototypes (e.g. Figma) created by the Agency or requirements provided by the Client. A traditional specification document (Pflichtenheft) is not created unless expressly agreed. The Agency is not obliged to create user stories or comparable documentation; if the Client provides such documentation, it may serve as a basis for services.
11.2.3. The Client acknowledges that, in both agile development and in initial creation of software solutions without a sprint model, a final, detailed service description is not typically available at the beginning of the project. Requirements may change during the project or be adapted due to additional input from the Client. Changes or extensions of requirements lead to increased effort and shall be remunerated separately by the Client.
11.2.4. For smaller projects or where a sprint-based planning process is not reasonably feasible, services are provided without an agile model. In such cases, the Agency implements the services commissioned by the Client in line with available capacities and agreed delivery dates.
11.2.5. Cooperation: The Client undertakes to actively cooperate in the execution of the project (e.g. by feedback, approvals, provision of content or prioritization of requirements). If the Client fails to provide necessary cooperation, this may lead to delays for which the Agency shall not be liable.
11.3. Acceptance
11.3.1. Provision: After completion of a sprint or release, the Agency provides the results – where available – in a staging environment and informs the Client. If there is no staging environment, provision is made by supplying suitable test access or demoing the functionality.
11.3.2. Acceptance period: The Client is obliged to test the provided service within 10 working days after provision and to notify any defects in writing. The defect notice must include a comprehensible description, reproduction steps and, where possible, screenshots or log excerpts.
11.3.3. Iterative acceptance: Each partial service (sprint/release result) is deemed accepted upon expiry of the acceptance period if the Client does not duly report defects of classes A or B pursuant to clause 21.4. If productive use (use in the production system) of the provided service occurs before expiry of the period, the service is likewise deemed accepted.
11.3.4. Defect classes:
A (critical): Productive operation not possible → acceptance suspended.
B (substantial): Core functionality significantly impaired, workaround available → acceptance subject to obligation to rectify.
C (minor): Cosmetic or minor usability defects → no impact on acceptance.
11.3.5. Rectification: The Agency shall remedy duly reported defects of classes A and B within a reasonable time. Defects of class C are placed in the backlog after coordination and rectified in the course of ongoing support (see 11.6).
11.3.6. Final acceptance: Once all agreed sprints/releases have been accepted, the project is deemed completed.
11.4. Third-Party Software & Open Source
11.4.1. To the extent third-party software is used, its licence and usage terms shall take precedence; the Client undertakes to comply with them.
11.4.2. Licence, usage and operating costs for third-party software shall be passed on to the Client.
11.4.3. Updates/upgrades/release changes of third-party software are outside the Agency’s control; compatibility adjustments are additional services.
11.4.4. In the case of OSS (open-source software), the Agency makes no warranty as to the properties of the OSS; copyright/licence notices are provided upon request.
11.5. Hosting & Operation
11.5.1. At the Client’s request, the Agency provides hosting/operation services on externally offered server services (cloud or dedicated servers). The Agency remains the Client’s contracting party; the respective server operators are sub-processors/subcontractors.
11.5.2. In the absence of a separate SLA (Service Level Agreement), the Agency does not owe any specific availability; reasonable best-effort response times within business hours apply. Planned maintenance windows will be announced in advance where possible.
11.5.3. Data and system backups are only owed if contractually agreed. Absent such an agreement, the Client is solely responsible for data backups.
11.5.4. The Client is responsible for content and legal compliance, access/role management, strong passwords and user management.
11.5.5. In the event of payment default, the Agency is entitled to suspend non-security-relevant services; data security remains unaffected.
11.6. Maintenance, Support & Further Development
11.6.1. Ongoing support: After completion of a regular project, ongoing support begins – unless agreed otherwise. Ongoing support is considered a project within the meaning of these special provisions for software (11). This classification serves solely for the application of these provisions and does not constitute a completed work in the legal sense. Ongoing support runs from completion of the preceding project until the end of the calendar year. Unless agreed otherwise in writing, a new ongoing support period starts at the beginning of each calendar year and runs until the end of that calendar year. The Client may choose between two types of ongoing support (active vs. passive support). If nothing else is agreed, passive support is deemed the standard.
11.6.2. Active support: Active support offers, on an individual basis, the possibility for the Agency to actively and regularly monitor and test systems and detect and fix potential errors as early as possible. A monthly retainer is agreed for this, enabling the Agency to respond quickly and flexibly to any given situation. Active support is agreed on an annual basis, providing price security and cost planning.
11.6.3. Passive support: Under passive support, the Client or third parties (with subsequent approval by the Client) themselves submit a report or change request, and costs are only incurred for the resulting work. Responsibility for the accuracy and completeness of change requests and information provided by the Client or third parties lies with the Client.
11.6.4. Maintenance & support: Maintenance and support are provided – unless agreed otherwise – as part of ongoing support. Services include in particular security updates, bug fixes and minor improvements. Functional extensions, system expansions or strategic adjustments do not constitute maintenance services and are treated as change requests.
11.6.5. Service levels: Service windows, response times and priorities are – where agreed – set out in a separate service description or SLA. Without an SLA, reasonable response times apply within business hours depending on the complexity of the request and current workload, without any obligation to constant availability or guaranteed response times. To process error reports, the following information must at least be provided:
What is the expected outcome (what should have happened)?
What is the actual outcome (what is the current status)?
How can the error be reproduced (how did the error occur)?
To simplify reporting, please use https://wb.at/de/kontakt/support or e-mail us at [email protected].
11.6.6. Additional services: Services required due to user errors, changes to the system environment, adjustments to third-party software or external interfaces, legislative changes, force majeure or comparable causes are deemed additional services and are to be remunerated separately.
11.6.7. Further development (change requests): Within the framework of ongoing support, the Agency may offer the Client continuous further developments and system adjustments in addition to maintenance and support. These include, in particular but not limited to:
functional extensions (e.g. additional filter functions, new modules, integration of payment providers or other interfaces),
design adaptations and optimisations of user guidance and usability,
technical and strategic measures such as integration of external tools, performance optimisations, search engine optimisation (SEO), expansion of multilingualism, measures to improve accessibility and optimisation for mobile devices.
Planned further developments and adjustments are coordinated with the Client before implementation, defined in terms of scope and priority and – where possible – provided with a rough time and economic estimate (effort estimate). This is intended to ensure transparent and plannable further development of the system. All such services constitute change requests within the meaning of this provision and, unless expressly agreed otherwise in writing, are to be remunerated separately.
11.6.8. Distinction from warranty: Services within the framework of maintenance and further development are distinct from statutory warranty. Remediation of defects after the end of the warranty period and adjustments to new requirements constitute chargeable services.
11.6.9. Own components & open source: Where open-source software or third-party components are affected in maintenance and further development, the Agency – to the extent permitted by law – assumes no liability for their functionality, future compatibility or licence changes. Necessary adjustments resulting from changes to such components constitute additional services.
11.7. Data Handover & Termination
11.7.1. At the end of the contract, the Agency will – after full payment – provide data exports in standard formats (e.g. SQL dump, JSON, CSV) against reasonable remuneration.
11.7.2. Assistance with transition/exit (e.g. onboarding a successor service provider) shall be remunerated on a time and material basis.
11.7.3. After expiry of a set period (e.g. 30 days), data will be deleted or anonymised in line with statutory retention requirements, unless otherwise agreed.
12. Moving Images, Photography and Digital Visualisations (2D, 3D, AR & VR)
12.1. The final material is provided to the Client digitally and in a common format (e.g. .mp4, JPG) once completed by the Agency.
12.2. This film product is generally granted to the Client with a two-year licence for exclusive use in predefined areas of use (such as presentations, social media, etc.).
12.3. After expiry of the two-year licence and if the Client wishes to continue using the film material, he may do so with the Agency’s approval and upon payment of an annual fee of 10% of the original production costs, unless agreed otherwise in writing.
12.4. If the Client wishes to further edit the delivered final film material, he may commission the Agency with such editing, or – if the Client wishes to edit the material himself or via third parties – a standard buy-out fee of 20% of the original production costs is required in addition to the Agency’s approval.
13. Identification / Credits
13.1. The Agency is entitled to refer to the Agency and, where applicable, to the author on all advertising materials and in all advertising measures, without the Client being entitled to any remuneration for this.
13.2. Subject to the Client’s right to revoke this in writing at any time, the Agency is entitled to refer on its own advertising materials and in particular on its website, by name and logo, to its current or former business relationship with the Client (reference note).
13.3. The Client is obliged to provide all works created or supplied by the Contractor (in particular, but not limited to: layouts, graphics, photos, videos, campaign materials, digital content) with an industry-standard copyright or agency notice whenever they are published or otherwise used. Unless agreed otherwise in writing, the marking shall be as follows: “Concept & implementation: [Agency name]”. The credit must be placed in a clearly visible position that can be attributed to the work. The Contractor is entitled to be named as author or agency on all versions and advertising materials and to use the work itself – while respecting any confidentiality agreements – for its own presentation purposes (e.g. website, social media, portfolios, competitions). Removal or modification of the credit by the Client or by third parties is not permitted unless the Contractor has given its prior written consent.
14. Warranty
14.1. The Client must report any defects without undue delay, in any case within eight days of delivery/performance by the Agency, and hidden defects within eight days of their discovery, in writing, describing the defect; otherwise the service shall be deemed approved. In such case, asserting warranty claims and claims for damages as well as the right to contest the contract on grounds of error due to defects shall be excluded.
14.2. In the event of a justified and timely defect notification, the Client shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency will remedy the defects within a reasonable period, whereby the Client must enable all measures required for investigation and defect rectification. Only if improvement fails after at least two attempts may the Client demand rescission or reduction. The Agency is entitled to refuse improvement if it is impossible or associated with disproportionate effort for the Agency. In this case the Client shall have statutory rights of rescission or reduction. In the event of improvement, the Client shall bear the cost of sending the defective (physical) item.
14.3. It is the Client’s responsibility to verify the legal admissibility of the service, in particular with respect to competition, trademark, copyright and administrative law. The Agency is only obliged to carry out a rough review of legal admissibility. In the case of slight negligence or after fulfilling any duty to warn the Client, the Agency shall not be liable for the legal admissibility of content if such content has been specified or approved by the Client.
14.4. The warranty period is six months from performance or – in the case of software – from acceptance/production use. Recourse claims pursuant to § 933b ABGB lapse one year after delivery. The Client is not entitled to withhold payments due to complaints. The presumption rule of § 924 ABGB is excluded.
14.5. No warranty shall apply in particular to defects caused by:
a) improper use or modifications by the Client or third parties,
b) lack of cooperation, incorrect or incomplete information,
c) external influences (e.g. power failure, force majeure, network faults),
d) changes to the system environment, third-party software, open-source components or API adjustments,
e) statutory or regulatory changes after performance.
14.6. For software projects, special provisions take precedence over these general provisions:
14.6.1. Warranty covers exclusively logical program errors in the accepted software that impair contractual use not merely insignificantly.
14.6.2. Adjustments to new technical conditions (e.g. OS, browser or database updates) are not defects but are considered chargeable further developments.
14.6.3. The presumption rule of § 924 ABGB is excluded; the Client bears the burden of proof that a defect existed at the time of acceptance.
14.6.4. In B2B relations, the warranty period is six months from acceptance or production use.
14.7. Distinction from maintenance: Services rendered after expiry of the warranty period as well as adjustments to new requirements are deemed chargeable maintenance or further development services.
15. Liability and Product Liability
15.1. In cases of slight negligence, liability of the Agency and its employees, contractors or other vicarious agents (“persons”) for material or financial damages of the Client is excluded, regardless of whether such damages are direct or indirect, lost profit or consequential damages, damages due to delay, impossibility, positive breach of obligation, culpa in contrahendo, defective or incomplete performance. The injured party must prove gross negligence. Insofar as the Agency’s liability is excluded or limited, this also applies to the personal liability of its “persons”.
15.2. Any liability of the Agency for claims asserted by third parties against the Client on the basis of services provided by the Agency (e.g. advertising measures) is expressly excluded if the Agency has complied with its duty to warn or such duty was not recognisable, whereby slight negligence is irrelevant. In particular, the Agency is not liable for litigation costs, the Client’s own legal fees or costs of publication of judgments, nor for possible claims for damages or other claims by third parties; in this respect, the Client must hold the Agency harmless and indemnified.
15.3. The Client’s claims for damages lapse six months after becoming aware of the damage and in any case three years after the Agency’s breach. Claims for damages are limited in amount to the net order value.
15.4. Liability (software & hosting)
15.4.1. The Agency’s liability is excluded in cases of slight negligence.
15.4.2. In cases of gross negligence or intent, liability is limited as follows:
a) for single projects, to a maximum of the net order volume of the project concerned,
b) for ongoing support, to a maximum of the fees paid in the last six months.
15.4.3. Consequential damages, lost profit, indirect damages and data loss (unless caused by intentional or grossly negligent conduct of the Agency) are excluded.
15.4.4. The Agency accepts no liability for third-party software/cloud providers; SLA or performance disruptions on the part of third parties will – where possible – be pursued against the third party for the Client. Credits granted by the third party are the sole compensation unless otherwise agreed.
15.4.5. Limitation of claims for damages: six months from knowledge of the damage, in any case three years from the damaging event.
16. Data Protection & IT Security
16.1. The Client agrees that his personal data, namely name/company, profession, date of birth, companies register number, powers of representation, contact person, business address and other addresses of the Client, telephone number, fax number, e-mail address, bank details, credit card data, VAT ID, will be collected, stored and processed by automated means for the purpose of fulfilling the contract and serving the Client, as well as for the Agency’s own advertising purposes, such as sending offers, advertising brochures and newsletters (in paper and electronic form), and for the purpose of referring to the existing or former business relationship with the Client (reference note). The Client agrees to receive electronic advertising until revoked. This consent may be revoked at any time in writing by e-mail, fax or letter to the contact details stated in the header of these GTC.
16.2. Data processing on behalf of the Client: Where the Agency processes personal data on behalf of the Client in the course of providing services, a data processing agreement (DPA) in accordance with Art. 28 GDPR shall be concluded. The DPA in the Agency’s current version forms part of the contractual relationship. The Client agrees that the Agency may use sub-processors to fulfil its services. In particular, the Agency may obtain hosting and infrastructure services from Hetzner Online GmbH. Other sub-processors will be disclosed to the Client upon request.
16.3. Technical and organisational measures: The Agency implements appropriate technical and organisational measures according to the state of the art, without guaranteeing any specific certification. These measures include, in particular, access and rights management, logging to a reasonable extent, encryption of data during transmission and regular security updates.
16.4. Security incidents: If the Agency becomes aware of a personal data breach, it shall inform the Client without undue delay, but no later than within 48 hours, about the type of data affected, the presumed categories of data subjects and the measures taken or planned.
16.5. Special services: Services going beyond the standard measures referred to under 26.2 – in particular penetration tests, system hardening in accordance with specific standards (e.g. ISO 27001, TISAX, PCI-DSS) or other compliance requirements – are not part of the regular scope of services and must be separately agreed and remunerated.
16.6. Responsibility of the Client: The Client remains the controller within the meaning of data protection law and is responsible for the lawfulness of the processing of personal data. This includes, in particular, establishing appropriate legal bases, fulfilling information obligations towards data subjects and obtaining necessary consents (e.g. for cookies or tracking). In this respect, the Client shall hold the Agency harmless and indemnified against any third-party claims.
17. Applicable Law
The contract and all mutual rights and obligations derived therefrom, as well as claims between the Agency and the Client, are subject to Austrian substantive law, excluding its conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
18. Place of Performance and Jurisdiction
18.1. The place of performance is the registered office of the Agency: 4400 Steyr. In the case of dispatch, the risk passes to the Client as soon as the Agency has handed over the goods to the carrier chosen by it.
18.2. The court with subject-matter jurisdiction for the Agency’s registered office shall have jurisdiction over all legal disputes arising between the Agency and the Client in connection with this contractual relationship. Notwithstanding the foregoing, the Agency is entitled to sue the Client at his general place of jurisdiction.
18.3. Where personal designations are used in the masculine form in this contract, they refer equally to women and men. When applying the designation to specific natural persons, the gender-specific form shall be used.
19. Final Provisions
By placing the order, the Client confirms that he has taken note of the Agency’s General Terms and Conditions and accepts them as applicable. This contract is governed by Austrian law. The exclusive place of jurisdiction for all disputes between the contracting parties is Steyr. Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the remainder of the contract shall not be affected. In place of the invalid or unenforceable provision, a valid and enforceable provision shall apply whose effects come closest to the economic purpose which the contracting parties pursued with the invalid or unenforceable provision.
The foregoing provisions shall apply mutatis mutandis in the event that the contract is incomplete.