Spark Service GmbH
Rainerstraße 34
5310 Mondsee, Austria
Mail: info@agency-spark.com
Website: www.agency-spark.com

1.1 Spark Service 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 no explicit reference is made to them. The GTC apply only to legal relationships with businesses (B2B).

1.2. The version valid at the time of contract conclusion shall apply. Deviations from these terms, as well as any additional agreements with the customer, are only effective if confirmed in writing by the Agency.

1.3. Any terms and conditions of the customer are not accepted, even if the Agency is aware of them, unless explicitly agreed otherwise in writing on a case-by-case basis. The Agency expressly rejects any terms and conditions of the customer. No further objection by the Agency to the customer’s terms and conditions is required.

1.4. Changes to the GTC will be communicated to the customer and are considered agreed if the customer does not object to the amended GTC in writing within 14 days. The customer will be explicitly informed of the significance of their silence and the specific clauses that have been changed. This implied acceptance does not apply to changes to essential service content and fees.

1.5. Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded based on them. The invalid provision shall be replaced by a valid one that most closely reflects the intent and purpose of the original.

1.6. The Agency’s offers are non-binding and subject to change.

If the potential customer has invited the Agency to develop a concept before entering the main contract, and the Agency fulfils this invitation prior to the conclusion of the main contract, the following provisions apply:

3.1. By the invitation and the Agency’s acceptance of the invitation, the potential customer and the Agency enter a contractual relationship (“pitching contract”). This contract is also governed by the General Terms and Conditions (GTC).

3.2. The potential customer acknowledges that the Agency incurs significant costs by preparing the concept, even though the customer has not yet assumed any obligations.

3.3. The concept, in its textual and graphical components, is protected by copyright law to the extent it meets the criteria for copyright protection. The potential customer is not allowed to use or modify these parts without the Agency’s consent, as prohibited by copyright law.

3.4. Additionally, the concept contains marketing ideas that may not qualify for copyright protection. These ideas are the initial spark in any creative process and can be defined as the origin of a marketing strategy. Therefore, elements of the concept that are unique and give the marketing strategy its distinctive character are protected. This includes advertising slogans, marketing texts, graphics, illustrations, promotional materials, etc., even if they do not meet the criteria for copyright protection.

3.5. The potential customer agrees not to economically exploit or use the creative advertising ideas presented by the Agency in the concept outside the context of a subsequent main contract, nor allow third parties to do so.

3.6. If the potential customer believes that any ideas presented by the Agency were already known to them before the presentation, they must inform the Agency via email within 14 days of the presentation, providing evidence that allows for a time-based verification.

3.7. If no such notification is made, both parties agree that the Agency has presented a new idea to the potential customer. If the idea is used by the customer, it is assumed that the Agency contributed to this effort.

3.8. The potential customer can release themselves from these obligations by paying appropriate compensation plus 20% VAT. This release takes effect only after the full compensation payment has been received by the Agency.

4.1. The scope of services to be provided is outlined in the service description in the agency contract, the order confirmation issued by the Agency, and any applicable briefing protocol (“offer documents”). Subsequent changes to the scope of services require written confirmation from the Agency. The Agency has creative freedom in fulfilling the order within the framework specified by the customer.

4.2. All services provided by the Agency (particularly drafts, sketches, final artwork, proof prints, blueprints, copies, colour proofs, and electronic files) must be reviewed by the customer and approved within three working days of receipt. If this period expires without feedback from the customer, the services are considered approved.

4.3. The customer must provide the Agency with all necessary information and documents for service delivery in a timely and complete manner. The customer must inform the Agency of all relevant circumstances affecting the order, even if these only become known during the execution of the order. The customer is responsible for any additional costs incurred if work must be repeated or delayed due to incorrect, incomplete, or subsequently changed information provided by the customer.

4.4. The customer is also obligated to check the documents provided for the execution of the order (such as photos, logos, etc.) for any potential copyright, trademark, or other third-party rights (rights clearance). The customer guarantees that these materials are free from third-party rights and can be used for the intended purpose. The Agency is not liable in cases of slight negligence or after fulfilling its duty to warn for any violation of third-party rights caused by the provided documents. If the Agency is held liable by a third party for such a violation, the customer shall indemnify and hold the Agency harmless, covering any damages incurred, including the costs of adequate legal representation. The customer agrees to support the Agency in defending against potential third-party claims and shall provide all necessary documents to the Agency without being asked.

5.1. The Agency is entitled, at its sole discretion, to perform the service itself, to engage competent third parties as agents to provide the contractual services, and/or to substitute such services with third-party services (“third-party services”).

5.2. The commissioning of third parties for third-party services is carried out either in the Agency’s own name or in the customer’s name, with the latter requiring prior notification to the customer. The Agency will carefully select these third parties and ensure that they possess the necessary professional qualifications.

5.3. The customer must assume obligations toward third parties that have been disclosed to them and that extend beyond the contract term. This also applies if the agency contract is terminated for a significant reason.

6.1. Specified delivery or service deadlines are considered approximate and non-binding unless explicitly agreed otherwise. Binding deadlines must be documented in writing or confirmed in writing by the Agency.

6.2. If the Agency’s delivery or service is delayed for reasons beyond its control — such as force majeure or other unforeseen events that cannot be prevented with reasonable means — the service obligations are suspended for the duration and extent of the hindrance, and deadlines are extended accordingly. If such delays last more than two months, both the customer and the Agency are entitled to withdraw from the contract.

6.3. If the Agency is in default, the customer can withdraw from the contract only after giving the Agency a written grace period of at least 14 days, which must pass without success. Claims for damages due to non-fulfilment or delay are excluded unless the customer proves intent or gross negligence.

7.1. The Agency is entitled to terminate the contract with immediate effect for significant reasons. A significant reason exists particularly if:

a) The execution of the service becomes impossible for reasons attributable to the customer, or the service is delayed further despite a 14-day grace period.

b) The customer repeatedly breaches essential obligations of the contract, such as payment of due amounts or cooperation duties, despite a written warning and a 14-day grace period.

c) There are justified concerns regarding the customer’s creditworthiness, and the customer neither makes advance payments nor provides suitable security upon the Agency’s request before the Agency performs the service.

7.2. The customer is entitled to terminate the contract without a grace period for significant reasons. A significant reason exists particularly if the Agency repeatedly breaches essential provisions of the contract despite a written warning and a reasonable grace period of at least 14 days to remedy the breach.

8.1. Unless otherwise agreed, the Agency’s fee entitlement arises for each service as soon as it is provided. The Agency is entitled to request advance payments to cover its costs. For orders with an (annual) budget of €10,000 or more, or for projects that extend over a longer period, the Agency may issue interim invoices, advance invoices, or request partial payments.

8.2. The fee is understood to be a net fee plus statutory VAT. In the absence of a specific agreement, the Agency is entitled to receive a fee for services rendered and the transfer of copyright and trademark usage rights at market rates.

8.3. All services provided by the Agency that are not explicitly covered by the agreed fee will be charged separately. All cash expenses incurred by the Agency must be reimbursed by the customer.

8.4. Cost estimates provided by the Agency are non-binding. If it becomes apparent that actual costs will exceed the estimated costs by more than 15%, the Agency will inform the customer of the additional costs. The cost overrun is considered approved unless the customer objects in writing within three working days and suggests cost-saving alternatives. For cost overruns of up to 15%, no separate notification is required, and the overrun is deemed pre-approved by the customer.

8.5. If the customer modifies or terminates commissioned work unilaterally without involving the Agency — notwithstanding ongoing support — the customer must pay the Agency for the services rendered up to that point according to the agreed fee and reimburse all incurred costs. Unless the termination is due to gross negligence or wilful misconduct by the Agency, the customer must also pay the full fee (commission) agreed for the project. The deduction under § 1168 of the Austrian Civil Code (ABGB) is excluded. Additionally, the customer must indemnify the Agency against any third-party claims, particularly from subcontractors. By paying the fee, the customer does not acquire usage rights to the completed work; any unused concepts, drafts, and other documents must be returned to the Agency immediately.

9.1. The fee is due for payment immediately upon receipt of the invoice, without any deductions, unless specific payment terms have been agreed in writing. This also applies to the reimbursement of cash expenses and other costs. The goods delivered by the Agency remain the property of the Agency until full payment of the fee, including any additional obligations.

9.2. In the event of payment default, statutory default interest applicable to business transactions will apply. Additionally, the customer agrees to reimburse the Agency for necessary reminder and collection costs incurred during the pursuit of legal claims. This includes the cost of at least two reminders at a current minimum of €20.00 per reminder, as well as the cost of a reminder issued by a lawyer engaged for collection. The Agency retains the right to claim further damages.

9.3. In case of the customer’s payment default, the Agency may declare all services and partial services provided under other contracts with the customer as immediately due and payable.

9.4. Furthermore, the Agency is not obligated to provide any further services until the outstanding amount is paid in full (right of retention). The customer’s obligation to pay the fee remains unaffected.

9.5. If payment in instalments has been agreed, and the customer fails to pay an instalment or any ancillary obligation on time, the Agency reserves the right to demand immediate payment of the entire outstanding balance (loss of payment term).

9.6. The customer is not entitled to offset their claims against the Agency’s claims unless the customer’s claim has been acknowledged in writing by the Agency or legally established by a court.

10.1. All services provided by the Agency, including those from presentations (e.g., suggestions, ideas, sketches, drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts, remain the property of the Agency, as do individual workpieces and original designs. The Agency may reclaim these at any time, especially when the contract relationship ends. By paying the fee, the customer acquires the right to use the services for the agreed purpose. Unless otherwise agreed, the customer may only use the Agency’s services within Austria. The acquisition of usage and exploitation rights to the Agency’s services is contingent on full payment of the fees charged by the Agency. If the customer uses the services before full payment, such use is based on a revocable loan agreement.

10.2. Changes or modifications to the Agency’s services — particularly their further development by the customer or third parties working for the customer — are only permitted with the express consent of the Agency and, where applicable, the author if copyright protection applies. The delivery of all so-called “open files” is explicitly not part of the contract, and the Agency is not obligated to provide them. This means that, without a contractual transfer of usage rights for “electronic works,” the customer has no legal right to such files.

10.3. For use of the Agency’s services beyond the originally agreed purpose and scope, the Agency’s consent is required, regardless of whether the services are protected by copyright. The Agency and the author are entitled to appropriate additional compensation for such use.

10.4. For using the Agency’s services or advertising materials developed by the Agency after the contract has ended — whether protected by copyright or not — the Agency’s consent is required.

10.5. For such usage (10.4.), the Agency is entitled to: 100% of the agreed fee in the first year after contract termination, 50% in the second year, 25% in the third year. No fee is due starting from the fourth year after the contract ends.

10.6. The customer is liable to the Agency for any unauthorized use and must pay double the appropriate fee for such use.

11.1. The Agency is entitled to include a reference to the Agency and the author on all advertising materials and marketing measures, and the customer is not entitled to any compensation for this.

11.2. Unless the customer revokes consent in writing, the Agency may use the customer’s name and company logo on its promotional materials and website to refer to the existing or past business relationship (reference notice).

12.1. The customer must report any defects immediately, or within eight days of delivery or service provision. Hidden defects must be reported within eight days of their discovery, in writing and with a description of the defect. Failure to do so will result in the service being deemed accepted. In such cases, the right to warranty claims, damage claims, and contesting the contract due to defects are excluded.

12.2. If the defect report is justified and timely, the customer has the right to have the defect corrected or the service replaced by the Agency. The Agency will fix the defect within a reasonable time, and the customer must allow the Agency to take all necessary measures for inspection and correction. The Agency may refuse to correct the defect if it is impossible or would involve disproportionate effort. In this case, the customer is entitled to the statutory rights of rescission or reduction. If a correction is required, the customer is responsible for sending the defective physical item to the Agency at their own cost.

12.3. The customer is responsible for verifying the service’s legal compliance, particularly regarding competition law, trademark law, copyright law, and administrative regulations. The Agency is only obligated to conduct a basic legal compliance check. The Agency is not liable for legal issues arising from customer-provided or approved content, except in cases of gross negligence or after fulfilling any applicable duty to warn the customer.

12.4. The warranty period is six months from the delivery or service date. The right to recourse under § 933b (1) AGBG expires one year after delivery or service. The customer is not entitled to withhold payments due to defects. The presumption rule under § 924 AGBG is excluded.

13.1. In cases of ordinary negligence, the Agency and its employees, contractors, or other agents (“personnel”) are excluded from liability for material or financial damages suffered by the customer. This exclusion applies to direct or indirect damages, lost profits, consequential damages due to defects, delays, impossibility, positive breach of obligation, negligence during contract formation, or incomplete or defective performance. The burden of proving gross negligence lies with the injured party. The limitation or exclusion of liability for the Agency also applies to the personal liability of its personnel.

13.2. The Agency expressly excludes any liability for claims arising from services it has provided (e.g., marketing measures) if the Agency has fulfilled its duty to inform or if such a duty was not reasonably identifiable, even in cases of ordinary negligence. Specifically, the Agency is not liable for legal costs, the customer’s own attorney fees, publication costs of judgments, or any compensation claims or other third-party claims. The customer must indemnify and hold the Agency harmless in this regard.

13.3. The customer’s damage claims expire six months after the damage is identified and, in any case, three years after the Agency’s action causing the damage. Compensation claims are capped at the net contract value.

15.1. The place of performance is the registered office of the Agency. For shipments, the risk transfers to the customer once the Agency hands over the goods to the chosen shipping company.

15.2. The agreed place of jurisdiction for all disputes arising from or related to this contractual relationship is the competent court in Salzburg City, Austria. However, the Agency reserves the right to sue the customer in the customer’s general place of jurisdiction.

15.3. In this contract, references to natural persons in the male form apply equally to women and men. When referring to specific natural persons, the gender-specific form should be used accordingly.

Mondsee, January 01, 2025

Spark Service GmbH