General Terms and Conditions
of Chaka2 GmbH
Söllheimer Strasse 16, Building 10 B
5020 Salzburg
info@chaka2.com, www.chaka2.com
1. Scope and Conclusion of Contract
1.1 Chaka2 GmbH (hereinafter referred to as the “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 not explicitly referred to. The GTC apply exclusively to business-to-business (B2B) relationships.
1.2 The version valid at the time of contract conclusion shall apply. Deviations from these GTC and any supplementary agreements with the Client are only 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 and in writing agreed otherwise in an individual case. The Agency expressly rejects the Client’s GTC. No further objection by the Agency is required.
1.4 Amendments to the GTC shall be communicated to the Client and deemed accepted if the Client does not object in writing within 14 days. The Client will be expressly informed of the significance of silence and the specific amended provisions. This implied consent does not apply to changes affecting essential services or fees.
1.5 If individual provisions of these GTC are invalid, the validity of the remaining provisions and contracts concluded on their basis shall remain unaffected. The invalid provision shall be replaced by a valid provision that most closely reflects its meaning and purpose.
1.6 Offers made by the Agency are valid for 30 days and are deemed accepted upon written confirmation by email or in paper form.
2. Social Media Channels
The Agency expressly points out to the Client, prior to commissioning, that providers of “social media channels” (e.g., Facebook, hereinafter “Providers”) reserve the right, under their terms of use, to reject or remove advertisements and accounts at their discretion. Providers are not obliged to forward content or information to users. Consequently, there is an incalculable risk that advertisements or accounts may be removed without justification.
In the event of a complaint by another user, Providers may grant the possibility of a counterstatement, but removal occurs immediately. Reinstatement of the original lawful status may take considerable time.
The Agency operates on the basis of these Providers’ terms of use, over which it has no influence, and incorporates them into the Client’s order. By commissioning the Agency, the Client expressly acknowledges that these terms of use form part of the contractual relationship.
The Agency undertakes to perform the Client’s order diligently and in compliance with social media guidelines. However, due to the current terms of use and the ease with which any user can allege rights violations, leading to removal of content, the Agency cannot guarantee that the commissioned campaign will always remain accessible.
3. Protection of Concepts and Ideas
If a potential Client invites the Agency to prepare a concept prior to concluding the main contract, and the Agency complies, the following applies:
3.1 The invitation and acceptance thereof establish a contractual relationship (“Pitching Agreement”), which is also subject to these GTC.
3.2 The potential Client acknowledges that by preparing the concept, the Agency incurs significant costs, although the Client has not yet assumed any obligations.
3.3 The concept, in its textual and graphic parts, is protected under copyright law if it reaches the required threshold of originality. Any use or modification of these parts without the Agency’s consent is prohibited.
3.4 The concept may also contain marketing ideas that do not reach the threshold of copyright protection. However, such ideas—advertising slogans, texts, graphics, illustrations, advertising materials, etc.—are considered protected insofar as they are distinctive and shape the marketing strategy.
3.5 The potential Client agrees not to exploit or use the creative advertising ideas presented by the Agency outside the scope of a subsequent main contract.
3.6 If the potential Client believes that an idea presented had already been developed independently, he must notify the Agency within 14 days of presentation, providing verifiable evidence.
3.7 Otherwise, the parties shall assume that the Agency presented the Client with a new idea. If the Client uses the idea, it is deemed that the Agency has contributed to its development.
3.8 The potential Client may release himself from these obligations by paying reasonable compensation plus 20% VAT. This release becomes effective only upon full payment.
4. Scope of Services, Order Processing, and Client’s Duty to Cooperate
4.1 The scope of services results from the service description in the Agency contract, any confirmation of order, or briefing protocol (“Offer Documents”). Subsequent changes require written confirmation and may result in additional fees under Section 8.3. Within the Client’s specifications, the Agency retains creative freedom.
4.2 All Agency deliverables (drafts, sketches, final artwork, proofs, blueprints, copies, digital files, etc.) must be reviewed and approved by the Client within three business days. If no response is received, they are deemed approved.
4.3 The Client shall provide all necessary information and documents in a timely and complete manner and inform the Agency of all relevant circumstances, even if these arise during project execution. Any additional effort due to incorrect, incomplete, or subsequently changed information shall be borne by the Client.
4.4 The Client must ensure that any materials provided (e.g., photos, logos) are free of third-party rights and guarantees this. The Agency is not liable for rights infringements caused by Client-provided materials. If third parties assert claims against the Agency, the Client shall indemnify and hold the Agency harmless, including covering reasonable legal costs.
5. Third-Party Services
5.1 The Agency may, at its discretion, perform services itself, use qualified third parties as vicarious agents, and/or subcontract services (“Third-Party Services”).
5.2 Commissioning third parties may occur either in the Agency’s own name or in the Client’s name (with prior notification). The Agency undertakes to carefully select such parties.
5.3 The Client shall assume obligations toward third parties disclosed to him that extend beyond the contract term, even in the case of termination of the Agency agreement.
5.4 The Client acknowledges that the general terms and conditions of third parties apply to such relationships.
6. Deadlines
6.1 Delivery or performance periods are approximate unless expressly agreed in writing as binding.
6.2 If delays occur due to circumstances beyond the Agency’s control (e.g., force majeure, unforeseeable unavoidable events), obligations are suspended for the duration of the impediment. If delays exceed two months, either party may withdraw from the contract.
6.3 If the Agency is in default, the Client may withdraw only after granting a written grace period of at least 14 days, which expires unsuccessfully. Claims for damages are excluded except in cases of intent or gross negligence.
7. Premature Termination
7.1 The Agency may terminate the contract with immediate effect for important reasons, particularly if:
a) performance becomes impossible due to reasons attributable to the Client or is delayed despite a 14-day grace period;
b) the Client persistently breaches obligations despite written warning (e.g., payment, cooperation);
c) justified concerns exist regarding the Client’s solvency and the Client fails to provide advance payments or adequate security.
7.2 The Client may terminate the contract for important reasons, particularly if the Agency, despite written warning and a grace period of at least 14 days, continues to breach essential obligations.
8. Fees
8.1 Unless agreed otherwise, the Agency’s entitlement to fees arises once services are rendered. The Agency may demand advance payments (including third-party services). For projects exceeding €10,000 annually or of long duration, the Agency may issue interim invoices or call for installments.
8.2 Fees are net, exclusive of VAT, and cover items listed in the offer. In the absence of a specific agreement, the Agency is entitled to market-standard fees.
8.3 Services not explicitly included in the agreed fee are charged separately. Cash expenses incurred by the Agency must be reimbursed by the Client.
8.4 Cost estimates are non-binding. If costs are expected to exceed the estimate by more than 15%, the Agency shall notify the Client. The excess is deemed approved unless the Client objects in writing within three business days and proposes alternatives. Variances up to 15% require no notice and are considered pre-approved.
8.5 If the Client unilaterally alters or terminates commissioned work without the Agency’s consent, the Agency may invoice for all work performed, including agreed prepayments to third parties. Additionally, the Client must pay the full agreed fee unless termination is due to the Agency’s fault. The Client acquires no rights of use to completed work unless full payment is made.
9. Payment and Retention of Title
9.1 Fees are payable immediately upon receipt of invoice, without deductions, unless otherwise agreed. Delivered goods remain property of the Agency until full payment is received.
9.2 In the event of default, statutory interest rates apply. The Client must also reimburse the Agency for necessary collection costs, including at least two reminders (€20 each) and one attorney’s letter.
9.3 In the event of default, the Agency may declare all services under other contracts with the Client immediately due.
9.4 The Agency may suspend further services until outstanding amounts are paid.
9.5 If installment payments were agreed, any late payment entitles the Agency to demand immediate payment of the entire remaining debt.
9.6 The Client is not entitled to offset claims against Agency claims unless acknowledged in writing or legally established.
10. Ownership and Copyright
10.1 All Agency services (concepts, drafts, designs, sketches, presentations, etc.) remain property of the Agency. The Client acquires usage rights only for the agreed purpose and only upon full payment. Unless otherwise agreed, usage is limited to Austria. Any prior use constitutes a revocable loan.
10.2 Modifications or adaptations of Agency services require written consent. The release of “open files” is not part of the contract; the Client has no legal claim to them.
10.3 Use of Agency services beyond the agreed scope requires the Agency’s consent and entails additional compensation.
10.4 After contract termination, use of Agency concepts, designs, or advertising materials also requires the Agency’s consent.
10.5 For such post-contractual use, the Agency is entitled to the full contractual fee in year one, half in year two, and one quarter in year three. From year four onwards, no fee is due.
10.6 Unauthorized use obliges the Client to pay double the appropriate fee.
11. Credits and References
11.1 The Agency may place a credit line on all advertising materials and measures without compensation to the Client.
11.2 Unless expressly revoked in writing by the Client, the Agency may list the Client and display its logo on the Agency’s own advertising media and website as a reference.
12. Warranty
12.1 The Client must notify the Agency of any defects in writing within 8 days of delivery (or discovery, in the case of hidden defects). Otherwise, the service is deemed approved, and warranty or damage claims are excluded.
12.2 In the case of timely and justified defects, the Client is entitled to repair or replacement. The Agency may refuse repair if it is impossible or disproportionately costly, in which case the Client may demand a price reduction or rescission.
12.3 The Client is responsible for reviewing the legal admissibility of services (competition, trademark, copyright, administrative law). The Agency only conducts a basic review and accepts no liability for legal compliance if content was provided or approved by the Client.
12.4 The warranty period is six months from delivery. Recourse claims expire one year after delivery. Payments may not be withheld due to defects. The presumption rule under §924 ABGB is excluded.
13. Liability and Product Liability
13.1 In cases of slight negligence, liability of the Agency and its employees, contractors, or agents for property or financial damage is excluded. The burden of proof for gross negligence lies with the Client. This exclusion also applies to personal liability of the Agency’s staff.
13.2 The Agency is not liable for claims made against the Client arising from services rendered (e.g., advertising measures), provided the Agency has fulfilled its duty of disclosure or could not have recognized the issue. In particular, the Agency is not liable for litigation costs, Client’s legal fees, publication costs, or third-party claims. The Client shall indemnify and hold the Agency harmless.
13.3 Damage claims expire six months after the Client becomes aware of the damage, and in any case three years after the Agency’s act of breach. Liability is capped at the net contract value.
14. Governing Law
This contract and all resulting rights and obligations are governed exclusively by Austrian substantive law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.
15. Place of Performance and Jurisdiction
15.1 Place of performance is the Agency’s registered office. Risk passes to the Client once the goods are handed over to the carrier.
15.2 The exclusive place of jurisdiction for disputes arising out of or in connection with this contract is the court competent for the Agency’s registered office. The Agency may, however, sue the Client at his general place of jurisdiction.
15.3 Where personal terms are only stated in the male form, they apply equally to all genders.
Salzburg, January 1, 2025
Chaka2 GmbH