GENERAL TERMS AND CONDITIONS
Meta Medium e.U.
Business Register Number: 468618w
Rechte Bahngasse 32-30 / 14 1030 Vienna, Austria
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.
- 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.
- 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.
- 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
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.
6.1 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.
7.1 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
(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.
8.1 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
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.
- 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
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
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.
- 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.
- 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.
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.
- 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
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.
- 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.
- 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.
- 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.