TermsGeneral Terms and Conditions

1.1. These General Terms and Conditions apply to contracts between Digiknall GmbH (the “Service Provider”) and its clients (the “Client”). They apply only to entrepreneurs within the meaning of section 1(1) of the Austrian Consumer Protection Act

1.2. These terms and any project-specific terms of engagement sent with the Service Provider’s offer apply exclusively. Conflicting or differing terms of the Client apply only if the Service Provider expressly agrees to them in the individual case.

1.3. Individual agreements with the Client, including supplementary agreements, additions and amendments, and any differing particulars in offers or declarations of acceptance take precedence over these terms.

2.1. The Service Provider supplies services unless the parties expressly agree in an individual case that it will deliver a specific result under a contract for work.

2.2. The Service Provider’s offers are non-binding unless otherwise agreed in writing.

2.3. Unless expressly described or agreed as binding, the Service Provider’s offers are non-binding, particularly as regards price, quantity and performance dates. The Client is bound by its order for two weeks. A contract takes effect upon written confirmation of the order received by the Service Provider or, at the latest, when the Client accepts the services or products.

3.1. Unless otherwise specified by the Service Provider or agreed between the parties, performance dates and deadlines are non-binding.

3.2. Deliveries are made EX WORKS at the Service Provider’s registered office (Incoterms 2020).

3.3. If force majeure or other unforeseen events, such as operational disruptions, official measures, lawful strikes, epidemics or pandemics, temporarily prevent timely performance through no fault of the Service Provider or anyone for whose acts it is responsible, the dates and deadlines are extended by the period of disruption plus a reasonable period to resume operations. If the disruption delays performance by more than four months, either party may terminate the contract. The Client may do so only after setting a reasonable deadline for performance. Statutory rights of termination and withdrawal remain unaffected.

4.1. The Client will provide all information needed to carry out the order in full and in good time.

4.2. The Client undertakes to support the Service Provider’s activities to a reasonable extent. The Client will, at its own expense, put in place all conditions within its operations necessary for performance. In particular, it will grant the Service Provider access to the relevant social media accounts to the extent necessary and legally permissible.

4.3. The Client will ensure that the information, data, content and materials it supplies for the purposes of the contract are free of third-party rights and comply with applicable law, in particular competition law.

5.1. If no term has been agreed for the provision of services, the notice period for contracts running for up to six months is 30 days to the end of a month. For contracts running for more than six months, the notice period is three months to the end of a month.

5.2. Where the contract concerns the manufacture of non-fungible goods or the delivery of work under a contract for work, the Client may terminate it for good cause at any time before completion. In that case the Service Provider may claim the agreed price, less expenses saved as a result of termination, earnings from deploying its labour elsewhere, and earnings it has deliberately failed to obtain in bad faith.

6.1. Services are invoiced at the end of each calendar month.

6.2. Unless otherwise stated or agreed, invoices are payable within 10 working days of the invoice date. All prices exclude applicable VAT.

6.3. For strategy services, such as communication strategies, a deposit of 50% of the agreed amount is invoiced when the contract is concluded.

6.4. The Client may set off a counterclaim only if it has been established by final judgment, is ready for decision or is undisputed. The Client may exercise a right of retention only if its counterclaim also arises from the same contractual relationship.

7.1. The Service Provider owes no warranty for its services. Any warranty provisions in exceptional cases are expressly agreed.

8.1. Unless otherwise agreed, upon full payment of the agreed remuneration the Service Provider grants the Client a non-exclusive, transferable right to use all work products it creates for the Client in performing the services. The right is unlimited in territory, scope and duration and covers all known forms of use and exploitation, including reproduction, adaptation and modification. The Service Provider may also use the work products referred to in this clause 8.1 for its own business purposes without restriction or the Client’s consent, subject to the confidentiality obligations in clause 10.

8.2. The grant of rights under clause 8.1 excludes all work products created in connection with the creation of target audiences, for example for social media platforms. Upon full payment of the agreed fee, the service provider grants the client a non-exclusive, non-transferable, revocable licence, limited to the term of this agreement, to use these work products for the purposes of this agreement, particularly to deliver content to specific audiences. The service provider may use the work products described in clause 8.2 for its own business purposes without restriction or the client’s consent, subject to the confidentiality obligations under clause 10.

8.3. Subject to the confidentiality obligations in clause 10 and the Client’s prior consent, the Service Provider may use the work products referred to in clause 8.1 free of charge for its own marketing, for example by citing the project as a reference. The Client may not unreasonably withhold consent.

8.4. Upon acceptance of the order, the Client authorises the Service Provider to submit and use the work products referred to in clauses 8.1 and 8.2 for business development, including creative competitions and tenders, once the Client has first published them. Any confidential information to be submitted, such as strategy, target audiences, budgets, sales data, results or similar information, must first be redacted.

8.5. The Service Provider may retain the Client’s online marketing performance data collected in providing the services in pseudonymised form beyond the end of the contract. It may use these data without the Client’s consent for benchmarking, for example to estimate expected marketing performance, performance metrics or budget requirements. It will comply with applicable data protection legislation.

8.6. When the contractual relationship ends, the Service Provider may delete all work products referred to in clause 8.2 that were created in developing target audiences, unless statutory retention requirements apply.

9.1. The Service Provider will perform the agreed services with the care of a diligent business operator.

9.2. The Service Provider’s liability is excluded unless it acts intentionally or with manifestly gross negligence. This exclusion does not apply to personal injury. Except for claims in tort, the Client’s claims for damages for which liability is limited under this clause 9 become time-barred 12 months from the statutory commencement of the limitation period.

9.3. Where slight negligence results in a breach of a primary performance obligation, or of an ancillary obligation whose breach jeopardises the contract’s purpose or whose fulfilment makes proper performance possible and on which the Client was entitled to rely (a “material ancillary obligation”), the Service Provider’s liability is limited to damage typical of the contract and foreseeable when it was concluded.

9.4. In all cases, the Service Provider’s liability for a slightly negligent breach of a primary performance obligation or a material ancillary obligation is limited to twice the order value.

9.5. The Service Provider is not liable for a slightly negligent breach of a contractual ancillary obligation that is not material.

9.6. The above exclusions and limitations do not apply to fraudulent concealment of defects, guarantees of quality or durability, the Client’s claims under the Product Liability Act, or injury to the Client’s body or health or loss of life. This does not shift the burden of proof to the Client’s detriment.

9.7. Where the Service Provider’s liability is excluded or limited, the same applies to the personal liability of its legal representatives, employees, workers, personnel and persons engaged to perform its obligations.

10.1. “Confidential Information” means all non-public confidential information relating to the business of the party disclosing it (the “Disclosing Party”). When exchanging such information, the parties will comply with clauses 10.1, 10.2, 10.3 and 10.4. Confidential Information will be identified or marked as confidential on disclosure. Information is also confidential without such identification or marking if the party receiving it (the “Receiving Party”) knew, or ought in the circumstances to have known, that the Disclosing Party regarded it as confidential or proprietary. The Receiving Party will keep it secret and use at least the same care as it uses to protect its own confidential information, and in any event reasonable care. Reverse engineering is prohibited. The Receiving Party will use Confidential Information only to exercise its rights and meet its obligations under this contract. It will disclose it only to employees and contractors who need to know it. For the Service Provider, Confidential Information includes in particular the existence and substance of the cooperation between the Service Provider and the Client.

10.2. The parties will take confidentiality measures appropriate to the circumstances. These include restricting physical access to premises, limiting access to notes, memoranda and similar material relating to Confidential Information to individual employees who need it to provide the services, and requiring all employees handling Confidential Information to sign a comprehensive confidentiality agreement.

10.3. Clause 10.1 does not apply to Confidential Information to the extent that (i) it becomes generally available without a breach of clause 10.1 or 10.2, (ii) the Receiving Party already knew it and was free to use it without a duty of confidentiality, (iii) the Receiving Party lawfully obtained it from a third party who was neither employed by nor otherwise affiliated with the Disclosing Party and who voluntarily and lawfully supplied it, (iv) the Receiving Party can prove that its personnel independently developed it without access to the relevant Confidential Information and without using any Confidential Information, or (v) its disclosure is required by law or a court decision or is ordered by a competent authority.

10.4. Any statement by one party to third parties, particularly the press, in its own advertising or in presentations, about the existence, nature or substance of the cooperation or its objectives, tasks or results requires the other party’s express consent. Submissions of work products by the Service Provider to creative competitions are exempt.

10.5. The confidentiality obligations in this clause 10 continue for 3 years after the contractual relationship ends and also apply to any contracts and agreements that existed before it.

11.1. The Service Provider may engage third parties as subcontractors to provide the services.

Performance of this contract involves processing personal data, particularly data about social network users. In the relationship between the Client and the Service Provider, the Client is the controller within the meaning of Article 4(7) GDPR for all personal data that the Service Provider processes on the Client’s behalf as a processor within the meaning of Article 4(8) GDPR to provide its services under this contract. For this purpose, the parties enter into a data processing agreement under Article 28 GDPR, which forms an integral part of this contract.

13.1. The confidentiality and liability clauses remain binding after this contract ends, regardless of the reason.

13.2. There are no oral agreements ancillary to these terms.

13.3. If any provision of this agreement is or becomes invalid, in whole or in part, the validity of the remaining provisions is unaffected.

13.4. The order, its performance and any resulting claims are governed exclusively by Austrian substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

13.5. Vienna is the place of jurisdiction if the Client is an entrepreneur within the meaning of section 1(1), point 1 of the Austrian Consumer Protection Act (KSchG), or has no general place of jurisdiction in Austria. The Service Provider may sue the Client in any other court with statutory jurisdiction. Statutory rules on exclusive jurisdiction remain unaffected.