General Terms and Conditions
of the Chaka2 GmbH
Söllheimer Strasse 16, Building 10 B
5020 Salzburg
info@chaka2.com, www.chaka2.com
1. Applicability, Conclusion of Contract
1.1 Chaka2 GmbH (hereinafter referred to as the “Agency”) provides its services exclusively based on the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the customer, even if not explicitly referred to. The GTC apply exclusively to relationships with entrepreneurs, i.e., B2B. 1.2 The version valid at the time of contract conclusion is decisive. Deviations from these and other supplementary agreements with the customer are effective only if confirmed in writing by the Agency. 1.3 Any terms and conditions of the customer are not accepted, even if known, unless expressly and in writing agreed upon in individual cases. The Agency expressly contradicts the customer’s terms and conditions. No further objection to the customer’s terms and conditions by the Agency is required. 1.4 Changes to the GTC will be notified to the customer and deemed accepted if the customer does not object in writing within 14 days; the customer is explicitly informed of the significance of silence and the specific changed clauses. This approval presumption does not apply to changes in essential service content and fees. 1.5 If individual provisions of these General Terms and Conditions are ineffective, this does not affect the validity of the remaining provisions and contracts concluded on their basis. The ineffective provision is to be replaced by an effective one that comes closest to its purpose. 1.6 The Agency’s offers are non-binding.
2. Social Media Channels
The Agency explicitly informs the customer before placing an order 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 not obligated to transmit content and information to users. Therefore, there is an unpredictable risk, not calculable by the Agency, that ads and appearances may be removed without cause. In the event of a complaint from another user, the providers do allow the possibility of a counterstatement, but in this case, the content is also immediately removed. In this situation, regaining the original lawful state may take some time. The Agency works based on these terms of use of the providers, over which it has no influence, and incorporates them into the customer’s order. By placing the order, the customer expressly acknowledges that these terms of use determine the rights and obligations of any contractual relationship. The Agency intends to carry out the customer’s order to the best of its knowledge and belief 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 content removal, the Agency cannot guarantee that the commissioned campaign is always accessible.
3. Concept and Idea Protection
If the potential customer 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 the acceptance of the invitation by the Agency, the potential customer and the Agency enter into a contractual relationship (“Pitching Agreement”). This agreement is also based on the GTC. 3.2 The potential customer acknowledges that the Agency incurs cost-intensive preliminary services by starting the concept development, even though he himself has not yet assumed any performance obligations. 3.3 The concept, in its linguistic and graphic parts reaching the level of a work, is protected by copyright law. Use and modification of these parts without the Agency’s consent are not permitted for the potential customer based on copyright law. 3.4 The concept also includes advertising-related 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 for everything later produced and thus as the origin of marketing strategy. Therefore, elements of the concept that are peculiar and give the marketing strategy its characteristic imprint are protected. Ideas in the sense of this agreement include, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach the level of a work. 3.5 The potential customer undertakes not to economically exploit or have exploited the creative advertising ideas presented by the Agency within the corrective of a subsequently concluded main contract or to use them. 3.6 If the potential customer believes that the Agency has presented ideas to him that he had already come up with before the presentation, he must notify the Agency of this within 14 days after the presentation date by email, stating evidence that allows for a temporal assignment. 3.7 In the opposite case, the contracting parties assume that the Agency has presented a new idea to the potential customer. If the customer uses the idea, it is assumed that the Agency has made a significant contribution. 3.8 The potential customer can exempt himself from his obligations under this point by paying reasonable compensation plus 20% value-added tax. Exemption only occurs upon full receipt of the compensation payment by the Agency.
4. Scope of Services, Order Processing, and Customer’s Duty to Cooperate
4.1 The scope of the services to be provided is determined by the service description in the agency contract or any order confirmation by the Agency, as well as any briefing protocol (“Offer”). Subsequent amendments or supplements to the Offer must be made in writing to be effective. 4.2 The Agency is entitled to have the services provided in whole or in part by third parties (freelancers, external agencies). The Agency will choose these third parties carefully and coordinate their services. 4.3 The customer is obliged to provide the Agency with all documents, information, and rights necessary for the provision of the service without being asked, in a timely manner, and free of charge. This includes, in particular, all data and information necessary for the development of advertising material, such as logos, images, texts, and other content. 4.4 The customer is responsible for checking the accuracy of the documents, information, and rights provided. If the customer discovers errors or deficiencies, he must inform the Agency immediately. 4.5 The customer is responsible for the timely provision of advertising material in accordance with the specifications of the Agency. If the customer does not fulfill this obligation, the Agency is entitled to extend the deadlines accordingly. Any additional costs incurred as a result will be borne by the customer. 4.6 The customer is obliged to name a contact person who is authorized to make binding decisions on his behalf. The customer’s contact person is responsible for coordinating and approving the services provided by the Agency. 4.7 The customer must ensure that the advertising material provided to the Agency does not violate legal regulations, third-party rights (including intellectual property rights), and does not infringe any applicable guidelines of the advertising medium or platform.
5. Prices and Payment Terms
5.1 The prices for the services of the Agency are based on the agreed service description and any additional agreements made. Unless otherwise agreed, the prices are net prices plus statutory value-added tax. 5.2 Unless otherwise agreed, the Agency’s invoices are due for payment within 14 days of the invoice date without any deductions. The customer is in default without a reminder. 5.3 The customer is not entitled to offset against counterclaims, unless the counterclaims are undisputed or have been legally established. 5.4 The customer is not entitled to withhold payments due to warranty claims or other counterclaims arising from the same contractual relationship.
6. Terms of Delivery, Delivery Dates, and Default
6.1 The delivery period is determined individually or, in the absence of agreement, reasonably by the Agency. The delivery period begins with the conclusion of the contract, provided that all technical questions have been clarified and the customer has fulfilled all obligations incumbent upon him, in particular, the provision of the necessary documents, information, and rights. 6.2 The delivery period is reasonably extended in the event of force majeure, industrial disputes, unforeseen obstacles that are beyond the Agency’s control, insofar as such obstacles can be proven to have a significant influence on the completion or delivery of the service. This also applies if these circumstances occur with subcontractors. The Agency will inform the customer of the beginning and end of such obstacles as soon as possible. 6.3 If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, the Agency is entitled to demand compensation for the damage incurred by it, including any additional expenses. The right to further claims is reserved. 6.4 If the Agency is in default, the customer can withdraw from the contract after setting a reasonable grace period in writing. Claims for damages due to non-performance or delay, which do not result from gross negligence or intent, are excluded.
7. Copyright and Rights of Use
7.1 The Agency reserves the copyright to all creative and conceptual services provided by it, including individual components thereof, even if they do not meet the requirements for copyright protection. 7.2 The customer receives the exclusive, temporally and spatially unrestricted right of use for the agreed purpose of use of the services provided by the Agency. 7.3 The transfer of rights of use requires the full payment of the agreed remuneration. Until then, the Agency may revoke any rights granted. 7.4 The right of use is only transferred to the customer after full payment of the agreed remuneration. 7.5 The Agency is entitled to use the services provided, including drafts and intermediate results, for self-promotion and reference purposes. 7.6 The Agency is entitled to sign the services provided by it, even after transfer of rights of use.
8. Confidentiality
8.1 The contracting parties undertake to treat all information and documents designated as confidential or which must be recognized as confidential due to the circumstances with strict confidentiality. This obligation applies during the term of the contract and for a period of two years after its termination. 8.2 The obligation does not apply to information and documents that are generally known or become known without a breach of the confidentiality obligation.
9. Warranty and Liability
9.1 The Agency is liable for defects in the services provided by it in accordance with the statutory provisions. 9.2 The customer must notify the Agency of obvious defects within two weeks of receipt of the service in writing. Otherwise, the assertion of warranty claims is excluded. 9.3 The warranty period is 12 months from the provision of the service. 9.4 The Agency is only liable for damages caused intentionally or through gross negligence. This does not apply to personal injury or damage to health. 9.5 The liability for indirect damages, consequential damages, lost profits, and financial losses resulting from claims of third parties is excluded. 9.6 The above limitations of liability do not apply in the event of a guarantee promise or fraudulent intent.
10. Termination of the Contract
10.1 The Agency is entitled to terminate the contract with immediate effect for good cause. 10.2 Good cause exists in particular if the customer is in default with the payment of a not insignificant part of the remuneration for more than two weeks, and despite a reminder with a grace period, refuses payment. 10.3 In the event of termination for good cause, the Agency is entitled to demand the agreed remuneration for the services provided up to that point. 10.4 The right to extraordinary termination for good cause does not affect the right to assert claims for damages.
11. Data Protection
11.1 The Agency processes personal data in accordance with the applicable data protection regulations. The data protection information for customers can be viewed on the Agency’s website.
12. Final Provisions
12.1 The law of the Republic of Austria applies. The United Nations Convention on Contracts for the International Sale of Goods is excluded. 12.2 The place of jurisdiction for all disputes arising from or in connection with this contract is Salzburg. 12.3 Amendments and supplements to the contract must be made in writing to be effective. This also applies to a departure from the written form requirement. 12.4 If individual provisions of the contract or these General Terms and Conditions are or become ineffective, the validity of the remaining provisions is not affected. The contracting parties are obliged to replace the ineffective provision with an effective one that comes closest to the economic purpose pursued by the ineffective provision. The same applies in the case of a contractual gap. 12.5 The customer agrees that the Agency may mention the business relationship with the customer for reference and marketing purposes.
Salzburg, January 1, 2023
Chaka2 GmbH