General Terms and Conditions of Cherry Patterns e.U.

Mag. Alexander Kirschner
Glaserstrasse 2/6/27
4040 Linz
Austria
E-Mail:
Company Register Number: FN 512184m

1. Scope, Conclusion of Contract

1.1. Cherry Patterns (hereinafter referred to as the “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These shall 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, thus B2B.

1.2. The version valid at the time of conclusion of the contract shall apply. Deviations from these and any other supplementary agreements with the client shall only be valid if confirmed in writing by the Agency.

1.3. Any terms and conditions of the client shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The Agency expressly objects to any terms and conditions of the client. No further objection is required.

1.4. Amendments to these GTC shall be communicated to the client and shall be deemed agreed if the client does not object in writing within 14 days; the client shall be expressly informed of the significance of silence as well as the specific amended provisions. This presumption of consent shall not apply to changes of essential service contents and remuneration.

1.5. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and contracts concluded on their basis. The invalid provision shall be replaced by a valid provision that comes closest to its purpose.

1.6. Offers of the Agency are subject to change and non-binding.

2. Social Media Channels

Prior to placing an order, the Agency expressly informs the client that providers of “social media channels” (e.g. Facebook, hereinafter referred to as “providers”) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. The providers are therefore not obliged to distribute content and information to users. There is therefore a risk, which cannot be calculated by the Agency, that advertisements and appearances may be removed without cause. In the event of a complaint by another user, the providers may allow a counterstatement, but in such case the content will also be removed immediately. The restoration of the original lawful condition may take some time. The Agency operates on the basis of these terms of use of the providers, over which it has no influence, and also bases the client’s order on them. By placing the order, the client expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. The Agency intends to execute the client’s order to the best of its knowledge and belief and in compliance with the guidelines of social media channels. However, due to the currently valid terms of use and the ease with which any user can claim legal violations and thus cause the removal of content, the Agency cannot guarantee that the commissioned campaign will be available at all times.

3. Concept and Idea Protection

If the prospective client has already invited the Agency in advance to prepare a concept and the Agency complies with this invitation prior to the conclusion of the main contract, the following shall apply:

3.1. By the invitation and its acceptance, the prospective client and the Agency enter into a contractual relationship (“pitch agreement”). These GTC shall also apply to this agreement.

3.2. The prospective client acknowledges that the Agency already incurs considerable costs in preparing the concept, although the client has not yet assumed any performance obligations.

3.3. The concept, in its linguistic and graphic elements, is protected by copyright law insofar as it reaches the required level of originality. Use or modification of these parts without the consent of the Agency is not permitted to the prospective client under copyright law.

3.4. The concept may also contain advertising-relevant ideas that do not reach the threshold for copyright protection. These ideas represent the beginning of any creative process and may be defined as the origin of marketing strategies. Therefore, those elements of the concept are protected which are distinctive and give the marketing strategy its characteristic character. Ideas within the meaning of this agreement include, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not meet the threshold for copyright protection.

3.5. The prospective client undertakes to refrain from exploiting, having exploited, using or having used the creative advertising ideas presented by the Agency within the framework of the concept outside the context of a subsequently concluded main contract.

3.6. If the prospective client is of the opinion that ideas presented by the Agency were already known to them prior to the presentation, they must notify the Agency within 14 days of the day of the presentation by e-mail, providing evidence that allows for chronological assignment.

3.7. Otherwise, the contracting parties shall assume that the Agency has presented a new idea to the prospective client. If the idea is used by the client, it shall be assumed that the Agency has contributed to its creation.

3.8. The prospective client may be released from their obligations under this clause by paying appropriate compensation plus 20% VAT. The release shall only take effect upon full receipt of payment by the Agency.

4. Scope of Services, Execution of Orders and Duties of Cooperation of the Client

4.1. The scope of the services to be provided shall result 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 scope of services require written confirmation by the Agency. Within the framework specified by the client, the Agency shall have creative freedom in fulfilling the order.

4.2. All services of the Agency (in particular all drafts, sketches, final artwork, proofs, blueprints, copies, color prints and electronic files) must be reviewed by the client and approved within three working days of receipt. After expiry of this period without feedback from the client, they shall be deemed approved.

4.3. The client shall provide the Agency in a timely and complete manner with all information and documents required for the performance of the service. The client shall inform the Agency of all circumstances that are relevant for the execution of the order, even if they only become known during the execution. The client shall bear the costs incurred as a result of work having to be repeated or delayed due to incorrect, incomplete or subsequently changed information.

4.4. The client shall also be obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademark rights or other rights of third parties (rights clearance) and guarantees that the documents are free of third-party rights and may therefore be used for the intended purpose. The Agency shall not be liable in the case of slight negligence or after fulfilling its duty to warn – in any case in the internal relationship with the client – for any infringement of such third-party rights by documents provided. If the Agency is held liable by a third party due to such infringement, the client shall indemnify and hold the Agency harmless; the client shall compensate the Agency for all disadvantages arising from such claims, in particular the costs of appropriate legal representation. The client undertakes to support the Agency in defending against any third-party claims. The client shall provide the Agency with all necessary documents without being requested to do so.

5. Acceptance of Electronic Services

5.1. Individually created electronic services, such as online projects, require acceptance by the client for the respective work package no later than within the period specified in the service description. This shall be confirmed by the client in a protocol (verification of correctness and completeness based on the service description, if applicable using test data provided by the client). If the client allows the agreed period to expire without acceptance, the delivered work package shall be deemed accepted at the end of that period. Payment of the invoice shall also constitute acceptance.

5.2. The use of the electronic service in live operation by the client shall in any case be deemed acceptance.

5.3. Furthermore, the electronic service shall be deemed accepted if the Agency sets the client a written deadline for acceptance and the client allows this deadline to expire without action.

5.4. Any defects, i.e. deviations from the agreed service description, must be reported by the client in writing with sufficient documentation as soon as possible via email or letter; the Agency shall endeavour to remedy the defects as quickly as possible. If significant defects are present, i.e. if live operation cannot be commenced or continued, a new acceptance shall be required after the defects have been remedied.

6. Third-Party Services, Engagement of Third Parties

6.1. The Agency shall be entitled, at its own discretion, to perform the service itself, to use qualified third parties as vicarious agents in the performance of contractual services and/or to substitute such services (“third-party services”).

6.2. The commissioning of third parties within the scope of third-party services shall be 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 shall carefully select such third parties and ensure that they have the required professional qualifications. The Agency shall obtain offers which shall be submitted to the client for approval. The Agency shall be liable for the careful selection of the commissioned third parties. Any further liability for the services of such third parties shall be excluded to the extent permitted by law. The Agency shall, however, handle communication between the client and the third party and ensure quality control.

6.3. The client shall assume any obligations towards third parties that extend beyond the term of the contract. This shall expressly also apply in the event of termination of the agency contract for good cause.

7. Deadlines

7.1. Delivery or performance deadlines shall only be considered approximate and non-binding unless expressly agreed otherwise as binding. Binding deadlines must be agreed in writing or confirmed in writing by the Agency.

7.2. If delivery/performance by the Agency is delayed for reasons beyond its control, such as force majeure or other unforeseeable events that cannot be prevented with 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 more than two months, both the client and the Agency shall be entitled to withdraw from the contract.

7.3. If the Agency is in default, 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 this period has expired without result. Claims for damages by the client due to non-performance or delay are excluded, except in cases of intent or gross negligence.

8. Early Termination

8.1. The Agency shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall exist in particular if

a) the performance of the service becomes impossible for reasons attributable to the client or is further delayed despite setting a grace period of 14 days;

b) the client repeatedly violates essential obligations under this contract, such as payment of an amount due or duties of cooperation, despite written warning and a grace period of 14 days;

c) justified concerns regarding the client’s creditworthiness exist and the client neither makes advance payments nor provides suitable security upon request by the Agency;

d) insolvency proceedings are opened against the client’s assets or an application for the opening of insolvency proceedings is rejected due to insufficient assets;

e) the client misuses the authorization granted to use facilities of the Agency for unlawful purposes or to harm third parties.

8.2. The client shall be entitled to terminate the contract without setting a grace period for good cause. Good cause shall exist in particular if the Agency repeatedly violates essential provisions of this contract despite written warning and a reasonable grace period of at least 14 days.

9. Fees

9.1. Unless otherwise agreed, the Agency’s entitlement to fees shall arise for each individual service as soon as it has been performed. The Agency shall be entitled to request advance payments to cover its expenses. For orders with an (annual) budget of EUR 30,000 or more or those extending over a longer period, the Agency shall be entitled to issue interim invoices or advance invoices or to request payments on account.

9.2. The fee shall be understood as a net fee plus statutory VAT. In the absence of an agreement in individual cases, the Agency shall be entitled to remuneration at the customary market rate for the services rendered and the granting of usage rights.

9.3. All services of the Agency not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the client.

9.4. Cost estimates by the Agency are non-binding. If it becomes apparent that the actual costs will exceed the costs estimated in writing by more than 15%, the Agency shall inform the client of the higher costs. The cost overrun shall be deemed approved by the client if the client does not object in writing within three working days after this notification and at the same time proposes more cost-effective alternatives. In the case of a cost overrun of up to 15%, separate notification is not required. Such cost overruns shall be deemed approved by the client from the outset.

9.5. If the client unilaterally changes or terminates commissioned work without involving the Agency – without prejudice to ongoing support – the client shall pay for the services rendered up to that point in accordance with the agreed fee and reimburse all costs incurred. In addition, the Agency shall be entitled to the agreed remuneration less any expenses saved. Furthermore, the Agency shall be indemnified and held harmless with regard to any claims by third parties, in particular contractors of the Agency. Upon payment, the client shall not acquire any usage rights to work already performed; unexecuted concepts, drafts and other documents must be returned immediately.

10. Paymen, Retention of Title

10.1. The fee shall be due immediately upon receipt of the invoice and payable without deduction, unless special payment terms have been agreed in writing in individual cases. This shall also apply to the reimbursement of all cash expenses and other expenditures. Goods delivered by the Agency shall remain the property of the Agency until full payment of the fee, including all ancillary obligations.

10.2. In the event of default in payment by the client, the statutory default interest applicable to business transactions shall apply. Furthermore, in the event of default in payment, the client undertakes to reimburse the Agency for any reminder and collection costs incurred, insofar as these are necessary for appropriate legal enforcement. This shall in any case include the costs of two reminder letters at customary market rates per reminder, as well as one reminder letter issued by a lawyer engaged for debt collection. The assertion of further rights and claims shall remain unaffected.

10.3. In the event of default in payment by the client, the Agency may declare all services and partial services rendered under other contracts concluded with the client to be immediately due.

10.4. Furthermore, the Agency shall not be obliged to perform further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee shall remain unaffected.

10.5. If payment in installments has been agreed, the Agency reserves the right, in the event of late payment of installments or ancillary claims, to demand immediate payment of the entire outstanding debt (loss of installment privilege).

10.6. The client shall not be entitled to offset any claims against claims of the Agency unless the client’s claim is undisputed or has been legally established.

11. Ownership Rights and Copyright

11.1. All services of the Agency, including those arising from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and original drafts, and may be reclaimed by the Agency at any time – in particular upon termination of the contractual relationship. The client acquires the right to use the services for the agreed purpose upon full payment of the fee. Unless otherwise agreed, the use shall be limited to the territory defined in the contract (in particular country or market). The acquisition of usage and exploitation rights to the Agency’s services shall in any case require full payment of the fees invoiced by the Agency. If the client uses the Agency’s services prior to this point in time, such use shall be based on a revocable loan relationship at any time.

11.2. Changes or modifications to the Agency’s services, in particular further development by the client or by third parties engaged by the client, shall only be permitted with the express consent of the Agency and – insofar as the services are protected by copyright – of the author. The provision of so-called “open files”, in particular all editable working files and source files, is not part of the contract and requires a separate agreement. This means that without a contractual transfer of usage rights, including for “electronic works”, the client has no legal claim thereto.

11.3. The use of the Agency’s services beyond the originally agreed purpose and scope of use shall require the consent of the Agency, irrespective of whether the service is protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for such use.

11.4. The use of the Agency’s services or advertising materials for which the Agency has developed conceptual or design templates shall also require the Agency’s consent after termination of the agency contract, irrespective of whether such service is protected by copyright.

11.5. For uses pursuant to paragraph 4, the Agency shall be entitled to appropriate remuneration to be agreed separately.

11.6. The client shall be liable to the Agency for any unlawful use in an amount equal to twice the appropriate fee for such use.

12. Attribution

12.1. The Agency shall be entitled to refer to the Agency and, where applicable, the author on all advertising materials and in all advertising measures, without the client being entitled to any remuneration for this.

12.2. Subject to revocation by the client at any time in writing, the Agency shall be entitled to refer to the existing or former business relationship with the client by name and company logo on its own advertising media, in particular on its website (reference notice).

13. Warranty

13.1. The client shall notify any defects without delay, in any case within eight days of delivery/performance by the Agency, and hidden defects within eight days of their discovery, in writing and describing the defect; otherwise the service shall be deemed approved. In this case, the assertion of warranty and damage claims as well as the right to contest the contract due to error on the basis of defects shall be excluded.

13.2. In the event of justified and timely notification of defects, the client shall be entitled to improvement or replacement by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the client shall enable all measures necessary for the examination and rectification of defects. The Agency shall be entitled to refuse improvement if this is impossible or would involve a disproportionately high effort. In such case, the client shall be entitled to the statutory rights of rescission or reduction. In the case of improvement, the client shall be responsible for returning the defective item at its own expense.

13.3. The client shall also be responsible for reviewing the service with regard to its legal admissibility, in particular under competition law, trademark law, copyright law and administrative law. The Agency shall only be obliged to carry out a rough examination of legal admissibility. The Agency shall not be liable, in cases of slight negligence or after fulfilling any duty to warn, for the legal admissibility of content if such content was provided or approved by the client.

13.4. The warranty period shall be six months from delivery/performance. The right of recourse against the Agency pursuant to § 933b para 1 ABGB shall expire one year after delivery/performance. The client shall not be entitled to withhold payments due to complaints.

14. Liabilty and Product Liability

14.1. The liability of the Agency for slight negligence shall be excluded, except for personal injury. In all other cases, liability shall be limited to the typically foreseeable damage, but not exceeding the net contract value. To the extent that the liability of the Agency is excluded or limited, this shall also apply to the personal liability of its employees and agents.

14.2. Any liability of the Agency for claims brought against the client on the basis of services provided by the Agency (e.g. advertising measures) shall be excluded if the Agency has fulfilled its duty to warn or if such duty was not recognizable, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for legal costs, the client’s own legal expenses or the costs of publication of judgments, nor for any claims for damages or other claims by third parties; the client shall indemnify and hold the Agency harmless in this respect.

14.3. Claims for damages by the client shall expire within six months from knowledge of the damage, but in any case after three years from the act giving rise to the damage. Claims for damages shall be limited in amount to the net contract value.

15. Infrastructure for Electronic Services

15.1. The Agency shall assist the client in registering domains, but does not guarantee that desired domains are available or free of third-party rights. The Agency shall not examine the domain with regard to trademark or name rights. The client declares that it will comply with applicable legal provisions and not infringe any third-party rights, and shall indemnify and hold the Agency harmless in this respect.

15.2. If web space is organized by the Agency, this shall be subject to the conditions agreed between the hosting provider and the Agency. These shall be provided to the client upon request.

16. Applicable Law

This contract and all mutual rights and obligations arising therefrom shall be governed by Austrian substantive law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

17. Place of Performance and Jurisdiction

17.1. The place of performance shall be the seat of the Agency. In the case of shipment, the risk shall pass to the client as soon as the Agency has handed over the goods to the carrier selected by it.

17.2. The competent court at the seat of the Agency shall have jurisdiction for all disputes arising from this contractual relationship. Notwithstanding the foregoing, the Agency shall also be entitled to sue the client at its general place of jurisdiction.

17.3. Where personal designations are used in the masculine form, they shall refer equally to all genders.

18. Data Protection

The processing of the client’s personal data shall be carried out for the performance of the contract in accordance with Article 6(1)(b) GDPR. Any further processing for marketing purposes shall be carried out on the basis of the applicable legal provisions. The sending of electronic advertising shall only take place to the extent permitted by law, in particular in compliance with Section 174 of the Austrian Telecommunications Act 2021 (TKG 2021). The client may object to the use of their data for marketing purposes at any time or revoke any consent previously granted at any time. Further information on data processing can be found in the Agency’s separate privacy policy.