Terms and conditions (T&Cs) "kind of"
1. Scope of Application
1.1. These General Terms and Conditions (GTC) govern all contracts concluded between the advertising agency “Kind Of” (hereinafter referred to as “Agency”) and its clients (hereinafter referred to as “Client”). They also apply to all future contractual relationships, even if not explicitly referred to.
1.2. Deviations from these GTC, collateral agreements, or amendments must be made in writing to be effective. This also applies to the waiver of the requirement of written form.
1.3. Conflicting or deviating terms and conditions of the Client will only become part of the contract if the Agency expressly agrees to them in writing.
1.4. Should any provision of these GTC be invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a provision that comes closest to the economic purpose of the invalid provision.
2. Conclusion of Contract
2.1. The conclusion of the contract is based on the respective offer of the Agency or the order of the Client, in which the scope of services and the remuneration are specified. The Agency’s offers are non-binding and subject to change.
2.2. An order from the Client is binding for two weeks from receipt by the Agency. The contract is concluded when the Agency confirms the order in writing or begins to provide the service.
3. Scope of Services, Order Processing, and Client’s Obligations
3.1. The scope of services is determined by the respective order or the service description in the contract. Subsequent changes to the scope of services require the written consent of the Agency.
3.2. The Client must promptly review the services provided by the Agency (such as drafts, designs, animations, websites, etc.) and approve them within three working days. If the Client does not provide feedback within this period, the service is considered approved.
3.3. The Client is obliged to provide the Agency with all necessary information and documents in a timely manner that are required for the provision of the agreed services. The Client bears the costs of delays or repetitions of work resulting from incomplete or incorrect information.
3.4. The Client is responsible for ensuring that the materials provided (e.g., photos, logos) are free of third-party rights. Should the Agency be held liable for the infringement of such rights, the Client shall indemnify the Agency against all claims and compensate for any damages incurred.
3.5. The Agency’s services may be provided in partial sections.
4. Third-Party Services and Cooperation with Third Parties
4.1. The Agency reserves the right to provide services itself or to commission third parties to perform them.
4.2. The commissioning of third parties is carried out either in the name of the Agency or in the name of the Client, but always at the expense of the Client.
4.3. The Agency selects the commissioned third parties carefully and ensures their professional suitability. However, the Agency is not liable for the performance or poor performance by the commissioned third parties, but only for their careful selection.
5. Deadlines
5.1. Agreements on deadlines and dates must be made in writing and confirmed. The Agency strives to meet agreed deadlines. If deadlines are not met, the Client can assert their statutory rights only after setting a reasonable grace period of at least 14 days.
5.2. After the expiration of the grace period without service provision, the Client may withdraw from the contract. Claims for damages due to delay exist only in cases of intentional or grossly negligent behavior by the Agency.
5.3. Events beyond the Agency’s control, such as delays by suppliers or unforeseen circumstances, release the Agency from adhering to agreed delivery dates. This also applies if the Client does not fulfill their cooperation obligations in a timely manner. In such cases, the delivery period is extended accordingly.
6. Right of Withdrawal
6.1. The Agency is entitled to withdraw from the contract if:
7. Remuneration
7.1. The Agency is entitled to remuneration for each partial service provided as soon as it is completed. To cover its expenses, the Agency may request advances.
7.2. The fee for the services provided and for the transfer of usage rights will be agreed upon in advance between the parties. The fees stated are exclusive of statutory VAT. If no fee is agreed, a reasonable fee is deemed agreed.
7.3. All services provided by the Agency that are not expressly covered by the agreed fee will be billed separately. The Client must also reimburse all cash expenses incurred by the Agency.
7.4. Cost estimates provided by the Agency are non-binding. If it becomes foreseeable that the actual costs will exceed the estimated costs by more than 10%, the Agency will inform the Client without delay. The higher costs are considered approved if the Client does not object in writing within three days of receipt of the notice and simultaneously proposes cost-effective alternatives.
7.5. If an order is not executed for reasons not attributable to the Agency, the Agency is entitled to reasonable remuneration for the services provided. The Client does not acquire any rights to the work through payment of this remuneration; unexecuted concepts, drafts, and other documents must be returned to the Agency without delay.
8. Payment Terms
8.1. Invoices from the Agency are due immediately upon receipt without any deductions. In the event of late payment, default interest of 10% p.a. will be charged. Delivered goods remain the property of the Agency until full payment has been made.
8.2. The Client undertakes to bear all costs incurred in collecting claims, including collection costs and costs for reasonable legal action.
8.3. In the event of the Client’s default in payment, the Agency is entitled to demand the fee for all services provided under other contracts concluded with the Client immediately.
8.4. The Client is not entitled to offset its claims against claims of the Agency unless these claims have been acknowledged in writing by the Agency or have been legally established. The Client’s right of retention is excluded.
9. Presentations and Development of Ideas
9.1. For participation in presentations and pitches, the Agency may charge an appropriate fee covering all costs for personnel, material expenses, and any third-party services.
9.2. If no order is placed after the presentation, all services provided, including presentation materials and their contents, remain the property of the Agency. The Client is not entitled to use or distribute them in any form; the materials must be returned immediately.
9.3. The use of the ideas and concepts presented by the Agency by the Client or third parties is prohibited without the Agency’s written consent. The Client does not acquire any usage rights with the payment of the presentation fee.
9.4. If the Client does not implement the ideas and concepts presented, the Agency is entitled to use them elsewhere.
10. Copyright and Usage Rights
10.1. All services created by the Agency, including those from presentations (e.g., ideas, drafts, sketches, concepts), remain the property of the Agency and may be reclaimed at any time, especially upon termination of the contract. The Client acquires only the right to use the services for the purpose specified at the time of ordering and to the extent agreed upon by paying the agreed fee. Any use before full payment is permitted only with revocable permission.
10.2. Changes or further developments of the services created by the Agency by the Client or third parties require the express consent of the Agency and the author.
10.3. Any use beyond the originally agreed purpose and scope requires the Agency’s written consent and must be compensated separately.
10.4. After the termination of the contract, the Client may continue to use the services created by the Agency only with the Agency’s written consent. The Agency may demand a fee for this, which corresponds to the originally agreed fee in the first year after the end of the contract, reduced to half and a quarter of this fee in the second and third years, respectively, and ceases in the fourth year.
10.5. The Client does not acquire the right to receive open data suitable for editing.
11. Copyright Attribution and Reference Use
11.1. The Agency is entitled to indicate its authorship and company logo on all created advertising materials and measures without the Client being entitled to remuneration.
11.2. The Agency may use the Client and the services provided for them for reference purposes, particularly on its website.
12. Warranty and Liability
12.1. The Agency guarantees that its services meet industry standards. The Client must promptly review the services upon receipt and report any defects in writing.
12.2. In the case of justified and timely claims, the Client is initially entitled to improvement or replacement of the service. If rectification is impossible or associated with disproportionate effort for the Agency, the Agency may refuse rectification.
12.3. The reversal of the burden of proof according to § 924 ABGB to the detriment of the Agency is excluded. The Client bears the burden of proof that the defect already existed at the time of delivery, when the defect was detected, and that the complaint was made in due time.
12.4. Claims for damages by the Client, regardless of the legal basis, are excluded unless the Agency has acted intentionally or with gross negligence.
12.5. The Agency assumes no liability for claims made by third parties against the Client due to advertising measures. This particularly concerns claims for trademark or copyright infringements. In such cases, the Client shall indemnify and hold the Agency harmless.
12.6. The responsibility for the legal review of works created by the Agency (e.g., trademark protection, patent rights) lies with the Client.
12.7. Claims for damages expire at the latest six months after the Client becomes aware of the damage, but in any case, one year after the completion of the respective service.
12.8. The Agency’s liability is limited to the contract value. Liability for lost profit is excluded.
13. Data Protection and Confidentiality
13.1. Both parties undertake to treat all information obtained within the scope of the contractual relationship as confidential.
13.2. The Agency processes the Client’s personal data for the fulfillment of the contract and for its own advertising purposes. The Client may object to the processing of their data for advertising purposes at any time.
14. Applicable Law and Jurisdiction
14.1. The legal relationships between the Agency and the Client are governed exclusively by Austrian law, excluding international conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.
14.2. For all disputes arising from or in connection with the contract, the court with jurisdiction at the location of the Agency’s registered office shall have exclusive jurisdiction.
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