Onfidence GmbH, Forstbergstraße 18, 4470 Enns, Austria · +43 660 216 89 59 · office@onfidence.at. These terms apply exclusively to legal relationships with businesses (B2B).
1.1. Onfidence GmbH (the "Agency") provides its services exclusively on the basis of these general terms and conditions. They apply to all legal relationships between the Agency and the client, even where no express reference is made to them.
1.2. The version in force at the time the contract is concluded applies. Deviations and supplementary agreements are only effective if confirmed in writing by the Agency.
1.3. Any terms of the client are not accepted, even if known to us, unless expressly agreed otherwise in writing in the individual case.
1.4. Changes to these terms are notified to the client and are deemed agreed if the client does not object in writing within 14 days; the significance of silence is expressly pointed out in the notification.
1.5. Should individual provisions be invalid, this does not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid one that comes closest to its meaning and purpose.
1.6. The Agency’s offers are non-binding and subject to change.
2.1. The Agency expressly informs the client that operators of social media channels reserve the right in their terms of use to reject or remove advertisements and profiles for any reason. There is therefore a risk beyond the Agency’s control that advertising content may be removed without cause.
2.2. Amazon and Amazon Ads likewise reserve the right to reject, remove or modify product listings and adverts. Amazon’s terms and policies, including any changes Amazon makes from time to time, form an integral part of the contract between the Agency and the client. The Agency carries out the assignment to the best of its knowledge in compliance with Amazon’s policies but cannot guarantee that the content created will remain permanently and unchanged available.
3.1. If a prospective client invites the Agency to prepare a concept before the main contract is concluded, that invitation and its acceptance create a contractual relationship (a "pitching contract") to which these terms also apply.
3.2. The prospective client acknowledges that the Agency incurs substantial costs in preparing the concept before assuming any obligations itself.
3.3. In its textual and graphic elements the concept is protected by copyright. Use and adaptation without the Agency’s consent are not permitted.
3.4. In addition, advertising ideas are protected which, while not reaching the threshold of copyright protection, are distinctive and give the marketing strategy its characteristic character: slogans, copy, graphics, illustrations and advertising media.
3.5. The prospective client undertakes not to exploit or use such ideas commercially, or allow them to be used, outside a subsequent main contract.
3.6. If the prospective client believes that ideas presented were already conceived by them beforehand, this must be notified to the Agency within 14 days of the presentation, together with evidence allowing the timing to be established.
3.7. Otherwise the parties assume that the Agency presented a new idea and, if it is used, that the Agency was responsible for it.
3.8. The prospective client may discharge the obligations under this clause by paying reasonable compensation plus 20 % VAT; the discharge takes effect only once payment has been received in full.
4.1. The scope of services follows from the description in the agency contract or order confirmation and any briefing minutes. Subsequent changes require the Agency’s written confirmation. Within the framework set by the client, the Agency has creative freedom.
4.2. All deliverables must be reviewed by the client and approved within three working days of receipt. If this period passes without response, they are deemed approved.
4.3. The client shall provide all information and materials required for the services in good time and in full, and inform the Agency of all circumstances relevant to the assignment. The client bears the cost of work that has to be repeated or is delayed as a result of incorrect, incomplete or subsequently amended information.
4.4. The client is further obliged to check the materials provided (photos, logos etc.) for copyright, trade mark and other third-party rights and warrants that they are free of such rights. Should a third party bring a claim, the client shall indemnify the Agency, including the cost of reasonable legal representation.
4.5. The Agency creates all content in accordance with the client’s specifications and the relevant platform’s requirements and uploads it in the highest possible quality. The client acknowledges that the final rendering – image sharpness, colour reproduction – is affected by factors outside the Agency’s control, such as the platform’s image processing software.
4.6. The client shall indemnify the Agency against any third-party claims arising from the use of content created in accordance with the client’s instructions or platform requirements.
4.7. All content created must be reviewed and accepted by the client within eight working days of delivery. Content not reviewed within that period is deemed accepted.
5.1. The Agency is free to perform the services itself, to engage qualified third parties as subcontractors, or to substitute such services.
5.2. Third parties are engaged either in the Agency’s own name or in the name of the client. The Agency selects them carefully and ensures they have the necessary professional qualifications.
5.3. The client shall assume obligations towards third parties that extend beyond the term of the contract. This applies expressly even where the agency contract is terminated for good cause.
6.1. Stated delivery or performance periods are approximate and non-binding unless expressly agreed as binding. Binding arrangements must be recorded in writing or confirmed in writing by the Agency.
6.2. If performance is delayed for reasons outside the Agency’s responsibility – such as force majeure or other unforeseeable events that cannot be averted by reasonable means – obligations are suspended for the duration and extent of the impediment and deadlines are extended accordingly. Where such delays last more than two months, either party may withdraw from the contract.
6.3. If the Agency is in default, the client may only withdraw after granting a reasonable additional period of at least 14 days in writing which has expired without result. Claims for damages for non-performance or delay are excluded except where intent or gross negligence is proven.
7.1. The Agency may terminate the contract with immediate effect for good cause, in particular where performance becomes impossible for reasons attributable to the client or continues to be delayed despite a 14-day additional period; where the client repeatedly breaches material obligations despite written warning with a 14-day period; or where there are justified concerns about the client’s creditworthiness and the client provides neither advance payment nor adequate security.
7.2. The client may terminate for good cause without granting an additional period, in particular where the Agency repeatedly breaches material provisions despite written warning with a reasonable period of at least 14 days.
8.1. Unless agreed otherwise, the Agency’s entitlement to a fee arises as soon as each individual service has been rendered. The Agency may request advance payments to cover its costs. From an order volume with an (annual) budget of € 5,000.00, or for assignments extending over a longer period, the Agency may issue interim invoices or request payments on account.
8.2. Fees are net amounts plus statutory VAT. In the absence of an individual agreement, the Agency is entitled to a market-standard fee for the services rendered and for the granting of copyright and trade mark usage rights.
8.3. All services not expressly covered by the agreed fee are remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the client.
8.4. Cost estimates are non-binding. Where it becomes apparent that actual costs will exceed those estimated in writing by more than 15 %, the Agency will notify the client. The overrun is deemed approved if the client does not object in writing within three working days and simultaneously propose more economical alternatives. Overruns of up to 15 % are deemed approved in advance.
8.5. If the client unilaterally changes or discontinues commissioned work without involving the Agency, the client shall pay for the services rendered to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the discontinuation is due to gross negligence or intent on the part of the Agency, the client shall additionally pay the full fee agreed for the assignment. Payment does not confer any usage rights in work already performed.
9.1. Fees are payable in full without deduction upon receipt of invoice unless special payment terms are agreed in writing. Goods supplied by the Agency remain its property until the fee, including all ancillary claims, has been paid in full.
9.2. In the event of late payment, statutory default interest for business transactions applies. The client shall also reimburse necessary reminder and collection costs, in any event the cost of two reminders at market rates of at least € 20.00 each and one reminder from a lawyer instructed to collect the debt.
9.3. In the event of late payment, the Agency may declare all services and partial services rendered under other contracts with the client immediately due.
9.4. The Agency is furthermore not obliged to render further services until the outstanding amount has been settled (right of retention). The obligation to pay remains unaffected.
9.5. Where payment in instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt if instalments or ancillary claims are not paid on time (acceleration).
9.6. The client is not entitled to set off its own claims against claims of the Agency unless the client’s claim has been acknowledged in writing by the Agency or established by a court.
10.1. All services of the Agency, including those arising from presentations, remain its property and may be reclaimed at any time, in particular upon termination of the contractual relationship. By paying the fee the client acquires the right of use for the agreed purpose. Unless agreed otherwise, the client may use the Agency’s services only in the United Kingdom. Acquisition of usage and exploitation rights requires full payment of the fees invoiced.
10.2. Changes or adaptations of the Agency’s services, in particular their further development by the client or by third parties acting for the client, are permitted only with the express consent of the Agency and, where the services are protected by copyright, of the author.
10.3. Any use exceeding the originally agreed purpose and scope requires the Agency’s consent, for which the Agency and the author are entitled to separate reasonable remuneration.
10.4. Use after expiry of the agency contract of services or advertising media for which the Agency prepared conceptual or creative groundwork likewise requires its consent.
10.5. For such use the Agency is entitled, in the first year after the end of the contract, to the full agency fee agreed in the expired contract; in the second and third year to half and a quarter respectively; from the fourth year no agency fee is payable.
10.6. For any unlawful use the client is liable to the Agency for twice the fee appropriate for that use.
11.1. The Agency is entitled to refer to itself and, where applicable, to the author on all advertising media and in all advertising measures, without the client being entitled to any payment.
11.2. Subject to the client’s written revocation at any time, the Agency is entitled to refer to the current or former business relationship by name and company logo on its own communication media, in particular on its website (reference).
12.1. Any defects must be reported in writing without delay, in any event within eight days of delivery, and hidden defects within eight days of discovery, describing the defect; otherwise the service is deemed approved and claims for warranty, damages and rescission for mistake are excluded.
12.2. Where a defect is validly and promptly notified, the client is entitled to have the service corrected or replaced. The Agency may refuse correction where this is impossible or involves disproportionate effort; in that case the client’s statutory rights of rescission or price reduction apply.
12.3. It is also for the client to check the service for legal admissibility, in particular under competition, trade mark, copyright and administrative law. The Agency is only obliged to carry out a broad review.
12.4. The warranty period is six months from delivery. The right of recourse against the Agency lapses one year after delivery. The client is not entitled to withhold payments on account of complaints.
13.1. In cases of slight negligence, liability of the Agency and of its employees, contractors or other agents for property or financial loss of the client is excluded, whether direct or indirect loss, lost profit, consequential loss caused by defects, loss due to delay or impossibility. Gross negligence must be proven by the injured party.
13.2. Any liability of the Agency for claims raised against the client on the basis of services provided by the Agency is expressly excluded where the Agency has complied with its duty to warn or where such a duty was not apparent to it. In particular the Agency is not liable for legal costs, the client’s own legal fees or the cost of publishing judgments.
13.3. Claims for damages by the client lapse six months after the client becomes aware of the loss, and in any event three years after the Agency’s act. The amount is limited to the net order value.
13.4. The Agency is not liable for changes to technical platforms or their operating conditions made after the content has been provided.
The processing of personal data is described in our privacy policy. The client consents to its business data being processed for the performance of the contract, client support and the Agency’s own promotional purposes; this consent may be withdrawn in writing at any time.
The contract and all mutual rights, obligations and claims between the Agency and the client are governed by Austrian substantive law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.
16.1. The place of performance is the Agency’s registered office. Where goods are dispatched, risk passes to the client as soon as the Agency has handed the goods to the carrier of its choice.
16.2. The court having subject-matter jurisdiction for the Agency’s registered office is agreed as the place of jurisdiction for all disputes arising in connection with this contractual relationship. Notwithstanding this, the Agency is entitled to sue the client at the client’s general place of jurisdiction.
16.3. Where terms referring to natural persons are used in the masculine form only, they refer to women and men equally.