TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS

of Graphit Lifestyle GmbH Company register number 613035y

1. Applicability, Conclusion of Contract

1.1 Graphit Lifestyle (hereinafter referred to as “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the client, even if they are not expressly referred to. The GTC are exclusively applicable to legal relationships with entrepreneurs, thus B2B.

1.2 The version valid at the time of the conclusion of the contract is decisive. Deviations from these as well as other supplementary agreements with the client are only effective if they are confirmed in writing by the Agency.

1.3 Any terms and conditions of the client are not accepted, even if known, unless expressly agreed otherwise in writing in individual cases. The Agency expressly contradicts the client’s terms and conditions. No further contradiction to the client’s terms and conditions by the Agency is required.

1.4 Changes to the GTC will be communicated to the client and are considered agreed if the client does not object in writing within 14 days; the notification explicitly points out the significance of silence and the specifically changed clauses. This assumption of consent does not apply to changes in essential performance content and fees.

1.5 Should individual provisions of these General Terms and Conditions be ineffective, this does not affect the binding nature of the remaining provisions and the contracts concluded under their basis. The ineffective provision is to be replaced by an effective one that comes closest to the intended meaning and purpose.

1.6 The offers of the Agency are non-binding and without obligation.

2. Social Media Channels

The Agency explicitly points out to the client before the order is placed that the providers of “social media channels” (e.g., Facebook, hereinafter referred to as the provider) reserve the right in their terms of use to refuse or remove advertisements and appearances for any reason. The providers are therefore not obliged to forward content and information to the users. Consequently, there is an unpredictable risk, not calculable by the Agency, that advertisements and appearances may be removed without reason. In the event of a complaint from another user, the providers grant the possibility of a counterstatement, but even in this case, the content is immediately removed. The restoration of the original, lawful state can take some time in this instance. The Agency operates based on these terms of use of the providers, over which it has no influence, and also bases the client’s order on these. By placing an order, the client expressly acknowledges that these terms of use determine (part of) the rights and obligations of any contractual relationship. The Agency intends to execute the client’s order to the best of its knowledge and conscience and to comply with the guidelines of “social media channels.” However, due to the current terms of use and the simple possibility for any user to claim legal violations and thus achieve removal of the content, the Agency cannot guarantee that the commissioned campaign is accessible at all times.

3. Concept and Idea Protection

If the potential client has already invited the agency to create a concept and the agency complies with this invitation before the conclusion of the main contract, the following regulation applies:

3.1 By the invitation and its acceptance by the agency, a contractual relationship (“Pitching Contract”) is established between the potential client and the agency. This contract is also based on the GTC.

3.2 The potential client acknowledges that the agency incurs costly preliminary services in developing the concept, although the client has not yet undertaken any obligation to perform services.

3.3 The concept, in its linguistic and graphic parts that reach the level of a work, is protected under copyright law. The potential client is not permitted to use or modify these parts without the consent of the agency, according to copyright law.

3.4 In addition, the concept contains advertising-relevant ideas that do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the spark that ignites all later productions and thus as the origin of marketing strategies. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic imprint are protected. An idea in the sense of this agreement is, in particular, advertising slogans, advertising texts, graphics, and illustrations, promotional materials, etc., even if they do not reach the level of a work.

3.5 The potential client undertakes not to economically exploit or allow the exploitation of these creative advertising ideas presented by the agency within the concept outside the corrective of a later to be concluded main contract.

3.6 If the potential client believes that the agency presented ideas to him that he had already come up with before the presentation, he must inform the agency within 14 days of the day of the presentation by email, citing evidence that allows for temporal assignment.

3.7 Otherwise, the contracting parties assume that the agency has presented a new idea to the potential client. If the client uses the idea, it is assumed that the agency has made a significant contribution.

3.8 The potential client can be released from his obligations under this point by paying an appropriate compensation, which is calculated according to the individual case, plus 20% VAT. The release only takes effect after the full payment of the compensation to the agency.

4. Scope of Services, Order Processing, and Client’s Obligations 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 the possible briefing protocol (“offer documents”). Subsequent changes to the content of the services require the written confirmation of the agency. Within the framework set by the client, the agency has creative freedom in fulfilling the order.

4.2 All services of the agency (especially all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints, and electronic files) must be reviewed and approved by the client within three working days of receipt by the client. If this period expires without feedback from the client, they are considered approved by the client.

4.3 The client will provide the agency with all information and documents required for the performance of the service in a timely and complete manner. He will inform them of all circumstances that are relevant for the execution of the order, even if these become known only during the implementation of the order. The client bears the expense incurred by the necessity of repeating or delaying work due to his incorrect, incomplete, or subsequently altered information.

4.4 The client is also obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, trademark rights, or other third-party rights (rights clearing) and guarantees that the documents are free from third-party rights and can therefore be used for the intended purpose. In the case of mere slight negligence or after fulfilling its duty to warn – at least in the internal relationship with the client – the agency is not liable for the violation of such third-party rights by provided documents. If the agency is claimed by a third party for such a rights violation, the client will indemnify and hold the agency harmless; he has to replace all disadvantages incurred by the agency due to a third-party claim, in particular the costs of appropriate legal representation. The client undertakes to assist the agency in defending against any third-party claims. The client will provide all documents to the agency for this purpose without being asked.

5. External Services / Commissioning Third Parties

5.1 The agency is entitled at its discretion to perform the service itself, to use knowledgeable third parties as agents for the provision of contract-related services, and/or to substitute such services (“external service”).

5.2 The commissioning of third parties within the scope of an external service occurs either in the agency’s own name or in the name of the client, the latter after prior information to the client. The agency will carefully select these third parties and ensure that they have the necessary professional qualifications.

5.3 In obligations towards third parties, which have been made known to the client and that extend beyond the duration of the contract, the client is required to assume responsibility. This applies expressly in the event of termination of the agency contract for a significant reason.

6. Deadlines

6.1 Stated delivery or service deadlines are considered approximate and non-binding unless expressly agreed as binding. Binding deadlines must be recorded in writing or confirmed in writing by the agency.

6.2 If the agency’s delivery/service is delayed for reasons beyond its control, such as force majeure and other unforeseeable events that cannot be avoided with reasonable means, the performance obligations will be suspended for the duration and to the extent of the obstacle, and the deadlines will be extended accordingly. If such delays last more than two months, both the client and the agency are entitled to withdraw from the contract.

6.3 If the agency is in delay, the client can withdraw from the contract only after setting a reasonable grace period of at least 14 days in writing to the agency and this period has expired without result. Claims for damages by the client for non-performance or delay are excluded, except in cases of proven intent or gross negligence.

7. Early 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 continuously, despite written warning with a grace period of 14 days, breaches essential obligations of this contract, such as payment of a due amount or cooperation duties.

c) There are justified concerns about the client’s creditworthiness, and the client, upon the Agency’s request, neither makes advance payments nor provides suitable security before the Agency’s performance;

7.2 The client is entitled to terminate the contract without a grace period for important reasons. An important reason exists, in particular, if the Agency continuously, despite written warning with a reasonable grace period of at least 14 days to remedy the breach of contract, violates essential provisions of this contract.

8. Fee

8.1 Unless otherwise agreed, the Agency’s right to a fee arises for each individual service as soon as it has been provided. The Agency is entitled to demand advances to cover its expenses. For orders with a (yearly) budget of €10,000 or those extending over a longer period, the Agency is entitled to issue interim invoices or advance invoices or to call for advance payments.

8.2 The fee is understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, the Agency is entitled to a fee in the customary market amount for the services provided and the transfer of copyright and trademark rights of use.

8.3 All services of 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 Estimates provided by the Agency are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the Agency by more than 15%, the Agency will inform the client of the higher costs. The cost overrun is considered approved by the client if the client does not object in writing within three working days after this notice and simultaneously indicates more cost-effective alternatives. If it is a cost overrun of up to 15%, separate notification is not necessary. This excess of the cost estimate is approved by the client from the outset.

8.5 If the client unilaterally changes or discontinues commissioned work without involving the Agency – notwithstanding ongoing other support by the same – he must pay the Agency for the services provided up to that point according to the fee agreement and reimburse all incurred costs. Unless the termination is justified by a grossly negligent or intentional breach of duty by the Agency, the client must also reimburse the entire fee (commission) agreed for this order, with the set-off compensation of § 1168 AGBG being excluded. Furthermore, the Agency must be indemnified and held harmless regarding any third-party claims, in particular from contractors of the Agency. With the payment of the fee, the client acquires no rights of use for work already performed; unexecuted concepts, drafts, and other documents must instead be returned to the Agency immediately.

9. Payment, Retention of Title

9.1 The fee is due immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed upon in writing in individual cases. This also applies to the reimbursement of all cash expenses and other expenses. The goods delivered by the agency remain the property of the agency until full payment of the fee, including all ancillary liabilities.

9.2 In case of late payment by the client, the statutory default interest applicable to business transactions applies. Furthermore, in case of late payment, the client agrees to reimburse the agency for the resulting reminder and collection expenses, as far as they are necessary for appropriate legal action. This includes the costs of at least two reminder letters of customary market amount, currently at least €20.00 per reminder, and one reminder letter from a lawyer involved in the collection. The assertion of further rights and claims remains unaffected.

9.3 In the event of the client’s late payment, the agency can immediately call due all services and partial services provided in the context of other contracts concluded with the client.

9.4 Furthermore, the agency is not obliged to perform further services until the outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected.

9.5 If payment in installments was agreed upon, the agency reserves the right, in the event of untimely payment of partial amounts or ancillary claims, to demand the immediate payment of the entire outstanding debt (loss of term).

9.6 The client is not entitled to offset their own claims against claims of the agency, unless the client’s claim has been acknowledged in writing by the agency or legally established.

10. Copyright and Property Rights

10.1 All services of the agency, including those from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), as well as individual parts thereof, remain the property of the agency and can be reclaimed by the agency at any time, especially at the end of the contractual relationship. By paying the fee, the client acquires the right to use for the agreed purpose. Unless otherwise agreed, the client may use the agency’s services exclusively in Austria. The acquisition of usage and exploitation rights to the agency’s services always requires the full payment of the fees charged by the agency for these services. If the client uses the agency’s services before this time, this use is based on a revocable loan relationship.

10.2 Changes or alterations to the services of the agency, such as their further development by the client or by third parties acting for them, are only permissible with the express consent of the agency and – insofar as the services are protected by copyright – the author. The release of all so-called “open files” is expressly not part of the contract. The agency is not obligated to release them. I.e., without a contractual transfer of the usage rights also for “electronic works”, the client has no legal claim to them.

10.3 For the use of services of the agency that goes beyond the originally agreed purpose and scope of use, the consent of the agency is required – regardless of whether this service is protected by copyright. For this, the agency and the author are entitled to a separate appropriate compensation.

10.4 For the use of services of the agency or of advertising materials, for which the agency has developed conceptual or creative templates, the consent of the agency is also required after the expiry of the agency contract, regardless of whether this service is protected by copyright or not.

10.5 For uses according to section 4, the agency is entitled to the full agency fee agreed in the expired contract in the 1st year after the end of the contract. In the 2nd and 3rd year after the end of the contract, only half or a quarter of the fee agreed in the contract is due. From the 4th year after the end of the contract, no agency fee is to be paid.

10.6 The client is liable to the agency for any unlawful use in double the amount of the appropriate fee for such use.

11. Identification

11.1 The Agency is entitled to indicate the Agency and possibly the author on all advertising materials and in all advertising measures, without the customer being entitled to any remuneration.

11.2 Subject to the customer’s written revocation at any time, the Agency is entitled to refer to its business relationship with the customer, past or present, on its own advertising media, particularly on its website, using the customer’s name and company logo (reference note).

12. Warranty

12.1 The customer must report any defects immediately, but no later than eight days after delivery/performance by the Agency, and hidden defects within eight days of their discovery, in writing, describing the defect; otherwise, any deviation in performance is considered approved. In this case, the assertion of warranty and damage claims, as well as the right to contest errors due to defects, is excluded.

12.2 In the case of a justified and timely complaint of defects, the customer has the right to have the delivery/service improved or exchanged by the Agency. The Agency will rectify the defects within a reasonable period, whereby the customer allows the Agency all necessary measures for the examination and rectification of the defects. The Agency is entitled to refuse the improvement of the service if it is impossible or associated with disproportionately high effort for the Agency. In this case, the customer is entitled to the legal rights of conversion or reduction. In the case of improvement, it is the responsibility of the client to transmit the defective (physical) item at his own expense.

12.3 It is also the responsibility of the client to verify the legal, especially competitive, trademark, copyright, and administrative law compliance of the performance. The Agency is only obligated to perform a rough check of legal compliance. The Agency is not liable for the legal permissibility of contents in the case of slight negligence or after fulfilling a possible warning obligation to the customer, if these contents were specified or approved by the customer.

12.4 The warranty period is six months from delivery/performance. The customer is not entitled to withhold payments due to complaints. The presumption rule of § 924 AGBG is excluded.

13. Liability and Product Liability

13.1 In cases of slight negligence, the liability of the Agency and its employees, contractors, or other vicarious agents (“staff”) for physical or financial damages to the client is excluded, regardless of whether it concerns direct or indirect damages, lost profits, consequential damages due to defects, damages due to delay, impossibility, positive breach of claim, fault at contract conclusion, due to defective or incomplete performance. The presence of gross negligence must be proven by the injured party. As far as the liability of the Agency is excluded or limited, this also applies to the personal liability of its “staff.”

13.2 Any liability of the Agency for claims raised against the client based on the service provided by the Agency (e.g., advertising measure) is expressly excluded if the Agency has fulfilled its duty to provide information or if such was not recognizable for the Agency, whereby slight negligence does not harm. In particular, the Agency is not liable for litigation costs, the client’s own attorney’s fees, or costs of publishing judgments, as well as for any compensation claims or other claims by third parties; the client must indemnify and hold the Agency harmless in this regard.

13.3 Claims for damages by the client expire six months after becoming aware of the damage; but in any case, three years after the Agency’s act of infringement. Claims for damages are limited in amount to the net order value.

14. Applicable Law

The contract and all mutual rights and obligations as well as claims between the Agency and the client are subject to Austrian substantive law, excluding its conflict of laws rules and excluding the UN Convention on Contracts for the International Sale of Goods.

15. Place of Performance and Jurisdiction

15.1 The place of performance is the registered office of the Agency. In the case of shipping, the risk passes to the client as soon as the Agency has handed over the goods to the transportation company chosen by it.

15.2 The jurisdiction for all legal disputes arising between the Agency and the client in connection with this contractual relationship is agreed to be the court having subject-matter jurisdiction at the seat of the Agency, Austria / Vienna. Notwithstanding this, the Agency is entitled to sue the client at his general place of jurisdiction.

15.3 As far as designations referring to natural persons in this contract are only given in male form, they refer to women and men equally. When applying the designation to certain natural persons, the gender-specific form is to be used.