BFG NITRO - TERMS & CONDITIONS

These terms and conditions (hereinafter “Terms”) are applicable to all future legal relationships between Agentur BFG NITRO (BFG MEDIA GmbH as contractor (hereinafter “Agency”) and the client (hereinafter “Client”).

Business will be concluded only based on these terms and conditions. We explicitly do not accept Client’s terms and conditions, unless otherwise agreed in writing in a particular case. Derogations or clauses conflicting with or supplementary to these Terms that are part of other parties’ terms and conditions will not form part of the contract even we are aware of such clauses. The Agency is not obliged to object to Client’s terms and conditions in any other form. The Agency offers its services on a non-binding basis. Only orders or change requests placed in writing shall be binding.

In case of any conflict between an offer, general or project-specific documents, if any, the Agency Contract or these Terms, the documents shall apply in the above order, since the more individual elements will amend the general elements.

Amendments of the Terms will be communicated to and shall be agreed by the Client if the Client does not object to an amendment of the Terms within 14 days in writing; any such notice will expressly inform the Client of the consequences of its silence and the specific clauses that were subject to change; this does not apply to changes in material service content and fees.

Where the Client has already invited the Agency to develop a concept and the Agency has taken up that invitation prior to the conclusion of the main contract, the following will apply:

Client and Agency will already enter into a contractual relationship once the Client invites the Agency and the Agency takes up the Client’s invitation to develop a concept (“Pitching Contract”). Also, such a contract is governed by these Terms. 

Client acknowledges that the Agency will already provide costly input in the context of creating a concept, although the Client itself has not yet accepted any payment obligations.

The linguistic and graphic parts of the concept are protected by copyright, provided they attain a level of originality. According to the provisions of the German Copyright Act (UrhG), the Client may not use and process these parts without the Agency’s consent.

Furthermore, the concept contains ideas relevant to advertising that do not attain a level of originality and are therefore not protected by copyright. These ideas come at the early stage of every creative process and can be defined as catalyst for later developments and thus as origin of a marketing strategy. Those elements which are original and characterise the marketing strategy are therefore protected. For the purpose of this agreement, ideas include but are not limited to advertising slogans, advertising texts, graphics and illustrations, advertising materials and the like, even if these materials do not reach a level of originality.

The Client undertakes not to exploit economically or to use or to allow the economic exploitation or use of these creative advertising ideas which the Agency presents in the context of the concept outside the scope of a main contract to be concluded later on.

If the Client feels that the Agency presented ideas that the Client had already thought of prior to the presentation, the Client shall inform the Agency via email within 14 days after the date of the presentation and provide documentary evidence that allow the Agency to attribute the same chronologically.

Should this not be the case, the parties assume that the Agency has presented a new idea to the Client. If the Client uses the idea, the Agency will be presumed to have provided meritorious services.

The Client may seek exemption from its obligations under this paragraph by paying a reasonable compensation plus legal value added tax. The fees stated in the cost estimate are considered a reasonable compensation. The Client is exempt from its obligation not until the Agency has received the full compensation. 

The binding scope of services can be derived from the Agency’s acknowledgement of the Client’s order or from other specifications contained in a written contract. The scope of services may be changed subsequently only with the Agency’s written confirmation. In the context of the execution of the order, the Agency has creative freedom within the scope defined by the Client.  

The Client shall review and release within a reasonable time after receipt all services (including but not limited to (preliminary) drafts, mock-ups, wire frames, graphics, designs, templates, videos, photos, editorial plans and electronic files). The Agency cannot guarantee compliance with the agreed schedule if the Client does not release these materials in due time. The Agency disclaims any liability for consequential damage caused by such delay.

The Client will make available to the Agency in a timely and complete manner any information and documents that are necessary for the provision of the service. The Client will notify the Agency of any circumstances which are significant for the execution of the contract even if the Client becomes aware of these only during the execution of the contract. Any expenses the Agency has incurred in connection with having to repeat work due to the Client’s inaccurate, incomplete or subsequently changed information or from any delays shall be borne by the Client. The Client undertakes to examine whether documents (such as images, photos, logos etc) the Client is providing to the Agency for the execution of the contract are subject to copyrights, trademark rights, rights to signs or other rights of third parties and guarantees that the documents are free of third-party rights and can be used for the contract. The Client will hold harmless and indemnify the Agency in this respect.The Client shall replace any drawbacks which the Agency suffers due to such third-party claims, including but not limited to the Agency’s and the opponent’s legal fees.The Client undertakes to support the Agency in connection with defending such third-party claims. The Client will make available the necessary documents and information to the Agency. The Client guarantees and assures to have obtained the necessary consents of the relevant third parties for the processing, storage, and transfer of personal data of third parties.

The Agency may at its own discretion provide the services itself, use qualified third parties as vicarious agents for the provision of the contractual services and/or subcontract such services („third-party services“).

The Agency will appoint third parties for the provision of third-party services either in its own name or, with prior notice, in the Client’s name. The Agency will select such third party carefully and will ensure that the third party possesses the necessary professional qualifications.

The Client shall accede to obligations vis-à-vis third parties that were notified to the Client and survive after the duration of this Contract. For the avoidance of doubt, this applies also if the Agency Contract is terminated for good cause.

Unless the Agency has explicitly confirmed that deadlines are binding, indicated times for deliveries or services are non-binding. Binding agreements regarding target dates shall be made in writing and must be confirmed by the Agency in writing.

The Agency is not deemed to be in default if a delay is caused by the Client’s failure to show up at scheduled meetings and to provide any necessary work and all documents in a complete manner and to cooperate as necessary.

If delivery/performance is delayed for reasons beyond the Agency’s control, such as events of force majeure and other unpredictable events that cannot be prevented by reasonable means, service obligations will be suspended for the duration and in the scope of the impediment. Deadlines will be extended accordingly. Client and Agency may withdraw from the contract if these delays last longer than two months.

If the Agency is in default, the Client may withdraw from the contract only if the Agency does not perform within an at least 14-day grace period granted in writing. Client cannot assert damages due to non-performance or default, unless evidence of intent or gross negligence was provided.

The Agency may terminate the contract for good cause without notice. Good cause shall be deemed to exist if

the execution of the service is impossible or further delayed despite a grace period of 14 days for reasons within the Client’s control.

the Client repeatedly breaches material obligations under this Contract, such as payment of an amount due or duties of cooperation, despite a written reminder and a 14-day grace period;

there are justified concerns as to the Client’s credit standing and the Client does not heed the Agency’s request for advance payment or fails to provide suitable securities;

bankruptcy or composition proceedings are opened in respect of the Client’s assets or a request to open such proceedings is rejected for lack of assets to cover costs or if the Client suspends payments.

The Client may terminate the contract for good cause without notice. Good cause shall be deemed to exist in particular if the Agency repeatedly breaches material terms of this contract despite a written reminder and fails to remedy such breach within a 14-day time limit.

The Agency is entitled to a fee for each individual service as soon as it was provided. Payment is due without any deduction within 14 (fourteen) days of the date of receipt of the invoice. This applies also to cash expenditures and other expenses charged to the Client. The goods supplied by the Agency remains the Agency’s property until the Client has paid the compensation, in its entirety, including any ancillary liabilities.

The Agency may demand payments on account and issue interim or advance invoices.

The Agency’s fees are net fees plus legal value added tax. Services not explicitly covered by the agreed compensation will be charged separately. In addition, the Client shall reimburse all cash expenditures.

Cost estimates are non-binding and do not constitute an offer. They do not oblige the Agency to execute the services specified therein. In cases of doubt, cost estimates are free. Even if a contract is awarded, all drafts, plans, calculations and other documents remain intellectual property of the Agency and may be exploited or transferred to third parties only with the Agency’s express written consent.

The Agency is entitled to the agreed compensation also for work, which the Client might not implement for any reason whatsoever. The assumption set forth in Section 1168 of the Austrian Civil Code (ABGB) is excluded. Payment of the compensation does not grant the Client a right to use work already executed. The Client shall immediately return to the Agency or destroy non-implemented concepts, drafts and other documents.

If any of the Client’s payments are late, the Agency may also demand immediate payment of all services and partial services provided in the context of other contracts concluded with the Client. The Agency may refuse to provide services until the Client has paid the outstanding amount. Where payment in instalments was agreed, the entire compensation is due if the Client has not paid partial amounts or ancillary claims in due time. The entire outstanding amount owed is immediately due for payment.

If the Client’s payments are late, the Agency may demand immediate payment of all services and partial services arisen in the context of other contracts with the Client.

The Agency is not obliged to provide further services for the Client until the Client has paid the outstanding amount (right of retention). This shall not affect the Client’s obligation to pay the Agency’s fee.

If Client and Agency have agreed on payment in instalments, the entire claim is due for payment even if the Client does not timely pay only one instalment or ancillary claim.  In this case, the Agency may demand immediate payment of the entire outstanding debt.

The Client may not set off its own claims against the Agency’s claims, unless the Client’s claims were acknowledged by the Agency in writing or established by a court.

Contracts awarded to the Agency constitute copyrighted services. This includes also presentations, drafts, sketches, concepts, mock-ups etc. The Agency reserves all copyrights. The Client is merely granted the non-exclusive and non-transferable right to use these services after full payment of the agreed compensation, for the agreed purpose, in the agreed scope, and for the agreed time.

If the Client wants to use the Agency’s services for a purpose other than the originally agreed purpose, the Client shall obtain the Agency’s consent, whether or not the service or work is protected by copyright.

The Agency has the exclusive right to grant permissions or rights to use works; these can be limited in time or limited to certain territories. Any such permission or right is granted by way of a separate agreement. Unless a separate agreement was reached on the scope of a permission or right, there shall be a right to use a work for an indefinite time yet limited to the territory of Austria. No permissions or rights are automatically granted in respect of products not covered by the scope of service. The Agency reserves the sole right to reproduce, to change, to make available to third parties or to use the service or work in a form other than agreed.

The Agency invariably reserves the right of processing, unless the right of processing is explicitly transferred by way of a written agreement. Where a right of processing was granted, the creator’s name must not be affixed to the result such that the processed work appears to be an original.

Where license rights are purchased for work used, the Client shall ensure that the work is not used beyond the scope of the subject-matter, time and territory for which the license rights were obtained.

Unless separately agreed, the Agency will not keep acquired rights (images, stock images, domains, software and other license rights) up to date and will not warn the Client prior to expiration. The Client shall ensure that rights obtained for a limited time are renewed in due time.

The Agency has the free right to name the author or the Agency on all advertising materials and in the context of all advertising measures. The Client is not entitled to any compensation in return.

The Agency may use name and logo to refer to its business relationship with the Client in its own advertising media, including but not limited to its website (“reference marketing”), without separate compensation payable to the Client.

The Client shall notify any defects immediately, within eight days after the Agency’s delivery/service, at the latest, specifying and describing the defect in detail. Hidden defects shall be notified in writing within eight days after they were detected, describing the defect in detail. Both parties agree that this deadline is reasonable. Otherwise, the service is deemed to be approved; in this event, the Client cannot lodge claims for warranty or the compensation of damage and has no right to avoid the contract on the ground of error (Irrtumsanfechtung) due to a defect.

If the Client lodges a justified and timely complaint due to a defect, Client is entitled to rectification or exchange of the delivery/service. The Client shall grant the Agency a reasonable time limit of at least 14 days to do so. If improvement of performance is impossible or involves a disproportionally high effort for the Agency, the Agency is entitled to refuse improvement. In this event, the Client may cancel the contract or ask for a reduction of the purchase price, provided the legal requirements are met. In case of improvement, the Client shall deliver the defective (physical) item at its cost and expense.

The Agency is not obliged to take corrective action to rectify a defect if defects within the Client’s control impede corrective action and the Client does not rectify those defects within a reasonable period of time.

The Agency does not guarantee for performance of third parties, if a third party was commissioned according to VI.2 hereof in the name and on behalf of the Client.

The parties agree that the Agency has creative freedom within the scope of the contract and that the Agency’s services constitute creative work. The Agency does not guarantee that the services provided will correspond to the Client’s wishes and requirements, unless specifically agreed in the contract. The Agency shall implement the requirements laid down in the acknowledgement of order according to its own discretion. Client cannot assert warranty claims if the Client does not like the result although it corresponds to the requirements laid down in the acknowledgement of order.

It is Client’s responsibility to examine whether the service is admissible according to legal provisions, including but not limited to competition law, trademark law, copyright law, and administrative law. For the avoidance of doubt, the contract does not provide for and the Agency does not conduct such legal reviews, unless Client and Agency separately agree thereon in writing.

The guarantee period is six months of delivery/service. The right to assert recourse claims vis-à-vis the Agency according to Section 933b (1) of the Austrian Civil Code (ABGB) expires 12 months after delivery/performance. The assumption set forth in Section 924 Austrian Civil Code (ABGB) is excluded.

The Agency will not be liable for property damage or financial damage incurred by the Client in cases of slight and gross negligence, whether direct or indirect damage, lost profit or consequential damage, damage due to default, impossibility, positive breach of obligations, fault in the context of concluding the contract, defective or incomplete performance. Client is obliged to prove gross negligence or intent. To the extent permitted by law, the Client cannot seek, in any event, compensation for consequential damage and financial damage, loss of savings, loss of interest and damage resulting from third party claims from the Agency.

The Client shall be liable for any damage or extra effort incurred by the Agency due to the fact that data and documents provided by the Client are unfit for use because they infringe the rights of third parties or contain unlawful content or are unfit for the provision of the services. The Client shall hold harmless and indemnify the Agency in this respect.

The Client undertakes to examine whether documents (such as images, photos, logos etc) are subject to copyrights, trademark rights, rights to signs or other rights of third parties. The Agency is not liable for any infringement of these rights, and the Client shall hold harmless and indemnify the Agency in this respect. The Client is obliged to replace any drawbacks arising from third-party claims, including reasonable legal fees. Furthermore, the Client undertakes to assist the Agency in connection with defending claims brought by third parties and to provide all necessary supporting documents.

The Agency explicitly disclaims any liability for claims asserted vis-à-vis the Client on the basis of the services provided by the Agency, provided that the Agency has fulfilled its obligation to inform the Client or such an obligation was not discernible. Slight negligence does no harm. The Agency is not liable for litigation expenses, the Client’s own legal fees or for the cost of publication of judgements or for other claims for the compensation of damage or other claims of third parties. The Client shall hold harmless and indemnify the Agency in this respect.

The Client’s claims for the compensation of damage shall forfeit six months after the damage is known and are statute-barred, in any event, three years after the Agency’s infringement. The amount of damages is limited to the net order value.

Before the Client awards a contract, the Agency will explicitly point out to the Client that the terms and conditions of providers of “social media channels” (such as Meta and Tik Tok, hereinafter “Providers”) reserve the right to reject or remove advertisements for whatever reason.

These Providers are therefore not obliged to transfer content and information to users. Accordingly, there is a non-calculable risk that advertising may be removed without reason. Although Providers allow counter-arguments in case another user lodges a complaint, content will nevertheless be removed immediately in these cases. In these events, it may take some time to restore the original and lawful conditions. The Agency carries on its activities and executes the Client’s contract on the basis of these terms of use of the Providers that are beyond the Agency’s control. In the context of awarding a contract, the Client explicitly acknowledges that these terms of use (co)determine the rights and obligations of the contractual relationship, if any. The Agency intends to execute the Client’s contract to the best of its knowledge and belief in compliance with the policies of social media channels. Based on the currently valid terms of use and the easy way for users to assert infringements and to have content removed, the Agency cannot guaranteed that the contracted campaign can be retrieved at all times.

Should any provision of the contract or of these Terms be or become invalid, in whole or in part, this shall not affect the validity of the remaining terms hereof. A term that is invalid in whole or in part shall be replaced by a term that closest reflects its economic content.

Place of performance shall be the Agency’s domicile. If the service is dispatched, the risk will transfer to the Client as soon as the Agency has handed the goods over to the carrier it has selected.
All disputes arising between the Agency and the Client in connection with this contractual relationship shall be referred to the court that has jurisdiction ratione materiae for the City of Berlin. Notwithstanding the above, the Agency may also sue the Client at the Client’s general legal venue.

JULY 2023