THE WAVES is subject to the management of the advertising and artist agency Flare Talents e.U.. The general terms and conditions of the agency (Flare Talents e.U.) apply to the cooperation/booking of THE WAVES.
General Terms and Conditions of the Agency Flare Talents e.U.
1. Validity
1.1 The Flare Talents e.U. agency - hereinafter referred to as the agency - provides its services exclusively on the basis of these General Terms and Conditions. These shall also apply to all future business relationships, even if no express reference is made to them. The service providers used by the Agency for various customer orders - hereinafter referred to as Talents - shall be bound by the Agency's General Terms and Conditions. 1.2 Subsidiary agreements, reservations, amendments or supplements to these General Terms and Conditions of Business shall require the written form in order to be valid; this shall also apply to any deviation from the written form requirement. 1.3 Any terms and conditions of the Contractual Partner that conflict with or deviate from these Terms and Conditions shall only become effective, even if they are known, if they are expressly recognised by the Agency in writing. 1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid one that comes closest to its meaning and purpose. 2. social media channels
Before placing the order, the Agency expressly points out to the Client that the providers of "social media channels" (e.g. facebook, instagram or google+, hereinafter referred to as "Providers") reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Accordingly, the providers are not obliged to forward content and information to the users. Therefore, there is a risk, which cannot be calculated by the agency, that advertisements and appearances are removed for no reason. In the case of a complaint by another user, the providers are granted the possibility of a counterstatement, but in this case, too, the content is removed immediately. In this case, it may take some time to restore the original, lawful state. The agency works on the basis of these terms of use of the providers, over which it has no influence, and also bases the order of the customer on these. By placing the order, the customer expressly acknowledges that these terms of use (also) determine the rights and obligations of a possible contractual relationship. The agency intends to execute the client's order to the best of its knowledge and to comply with the guidelines of "social media channels". However, due to the currently valid terms of use and the simple possibility of each user to claim infringements of rights and thus achieve a removal of the content, the agency cannot guarantee that the commissioned campaign can also be called up at any time. 3. Conclusion of contract
3.1 The basis for the conclusion of the contract shall be the respective offer of the Agency or the order of the Client, in which the scope of services and the remuneration are specified. The Agency's offers shall be subject to change and non-binding. 3.2. 3.2 If the Client places an order, he shall be bound by it for a fortnight from its receipt by the Agency. The contract shall be concluded by the Agency's acceptance of the order. Acceptance shall be in writing (e.g. by order confirmation) unless the Agency indicates beyond doubt (e.g. by acting on the basis of the order) that it accepts the order.4. scope of services, order processing and the customer's duty to cooperate
4.1 The scope of the services to be provided results from the customer's order or the service description or the information in the contract. Subsequent changes to the content of the service must be made in writing. 4.2 All services provided by the Agency shall be in writing. 4.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints and colour prints) shall be checked by the Client and approved within three days. If they are not released in time, they shall be deemed to have been approved by the Client. 4.2.1 When booking performing talent (such as models, actors, actresses, promoters, etc.) the following guidelines apply: Special conditions apply to underwear shoots in bra, panties, briefs, with stockings & suspenders, in boxer shorts, negligee and see-through or translucent items, as well as shoots of an otherwise revealing nature. These special conditions must be clarified in writing. This must be made known before booking and the agency must consult with the talent. For advertising jobs, the agency must be consulted in advance to avoid advertising conflicts. 4.3 Errors in the manuscript or the client's documents will be corrected to the best of the agency's ability, but the agency accepts no liability for this. Proofs shall be checked by the Client and returned with a note of approval. After expiry of a deadline set by the agency, the galley proof shall automatically be deemed approved. Amendments made orally and/or by telephone must be repeated in writing. The Agency shall not be responsible for any defects as a result of an excessively short delivery time requested by the Client. 4.4 The Client shall immediately provide the Agency with all information and documents required for the provision of the service. He shall inform the Agency of all events that are of significance for the execution of the order, even if these circumstances only become known during the execution of the order. The Client shall bear the costs incurred by the Agency if work has to be repeated or is delayed as a result of incorrect, incomplete or subsequently changed information provided by the Client. 4.5 The Client shall furthermore be obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any existing copyrights, trademark rights or other rights of third parties. The Agency shall not be liable for any infringement of such rights. If a claim is made against the Agency due to such an infringement of rights, the Client shall indemnify and hold the Agency harmless; the Client shall compensate the Agency for all disadvantages incurred by the Agency as a result of a claim made against it by third parties. 5. External services / commissioning of third parties
5.1 The Agency shall be entitled, at its own discretion, to provide the service itself, to make use of third parties in the provision of contractual services and/or to substitute such services ("vicarious agent"). 5.2 The commissioning of assistants shall be carried out either in its own name or in the name of the customer, but in any case for the account of the customer. The general terms and conditions of the commissioned subcontractors shall always apply - even if the processing work should be charged to the Client via the Agency. The full invoice amount shall be paid in due time, a reduction of the invoice amount shall only be permissible as soon as we have received a credit note from the subcontractor; if the required amount has already been transferred, we shall reimburse the difference. 5.3 The agency shall carefully select subcontractors and ensure that they have the necessary professional qualifications. 6. deadlines
6.1 Agreements on deadlines and dates shall be recorded or confirmed in writing. The Agency shall endeavour to meet the agreed deadlines. However, failure to meet deadlines shall not entitle the Customer to assert the rights to which he is entitled by law until he has granted the Agency a reasonable period of grace of at least 14 days. This period shall commence with the receipt of a reminder letter by the Agency. 6.2 After the fruitless expiry of the grace period, the Client may withdraw from the contract. An obligation to pay damages on the grounds of default shall only exist in the event of intent or gross negligence on the part of the Agency. 6.3 Unavoidable or unforeseeable events - in particular delays on the part of the Agency's contractors - shall in any case release the Agency from compliance with the agreed delivery date. The same shall apply if the Client is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information). In this case, the agreed date shall be postponed at least to the extent of the delay. 7. withdrawal from the contract and cancellation
7.1 The Agency shall be entitled to withdraw from the contract in particular if - the performance of the service is impossible for reasons for which the Customer is responsible or is further delayed despite the setting of a period of grace; - there are justified doubts about the Customer's creditworthiness and the Customer fails to make advance payments at the Agency's request or to provide suitable security prior to the Agency's performance. 7.2 In the event of cancellation (by the Client) of a confirmed booking within 5 working days of the agreed date of performance, 50% of the agreed fee shall be charged, and within 3 working days of the agreed date of performance, 100% of the agreed fee shall be charged, plus any costs incurred for performance, expenses and VAT. Cancellations must be submitted in writing by 4:00 p.m., otherwise the cancellation will be made on the following day. Options must be confirmed or cancelled as soon as a second option becomes bookable. 8. fee
8.1 Unless otherwise agreed, the Agency's fee claim shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advance payments to cover its expenses. 8.2 Unless otherwise agreed, the Agency shall receive a fee for the services rendered and the compensation for the rights of use under copyright and trademark law. The fee shall be exclusive of the statutory value added tax. 8.3 All services of the Agency not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client. 8.4 The Agency's cost estimates shall not be binding as a matter of principle. If it is foreseeable that the actual costs will exceed those estimated by the Agency in writing by more than 20%, the Agency shall draw the Client's attention to the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three days of such notification and at the same time discloses less expensive alternatives. 8.5 The Agency shall be entitled to appropriate remuneration for all Agency work that is not carried out by the Client for whatever reason. Upon payment of this remuneration, the Client shall not acquire any rights to such work; rather, concepts, drafts and other documents that have not been executed shall be returned to the Agency without delay.9. payment
9.1 The Agency's invoices shall be due net cash without any deductions from the date of the invoice and shall be paid within ten calendar days of receipt of the invoice, unless otherwise agreed. In the event of late payment, interest on arrears shall be deemed to have been agreed. Delivered goods shall remain the property of the Agency until payment has been made in full. 9.2 The fee to be paid by the Client to the Agency shall consist of a) the agreed work fee of the Talent b) the publication and exploitation fee c) the agreed agency commission (24%, unless otherwise agreed) plus the statutory turnover tax. Any expenses shall be borne by the Client. 9.3 In the event of default in payment by the Client, the following shall apply: From 7 days of default, a payment reminder (first reminder, without fees) shall be sent to the client by post. From 14 days onwards, a second reminder will be sent by post (€10 reminder fee). From 21 days onwards, a third reminder (€50 reminder fee) will be sent by post (registered mail). 9.4 The customer undertakes to bear all costs and expenses associated with the collection of the claim, such as in particular collection charges or other costs necessary for appropriate legal prosecution. 9.5 In the event of default in payment on the part of the Client, the Agency shall be entitled to demand immediate payment for all services and partial services rendered under other contracts concluded with the Client. 9.6 The Client shall not be entitled to set off his own claims against claims of the Agency, unless the Client's claim has been recognised by the Agency in writing or has been established by a court of law. A right of retention on the part of the Client shall be excluded. 10. presentations
10.1 The Agency shall be entitled to an appropriate fee for participation in presentations, which, in the absence of an agreement, shall at least cover the Agency's entire personnel and material expenses for the presentation as well as the costs of all external services. 10.2 If the Agency does not receive an order after the presentation, all the Agency's services, in particular the presentation documents and their content, shall remain the property of the Agency; the Customer shall not be entitled to use them further - in whatever form; the documents shall rather be returned to the Agency without delay. The transfer of presentation documents to third parties as well as their publication, duplication, dissemination or other exploitation shall not be permitted without the express consent of the Agency. 10.3 The Client shall also be prohibited from further use of the ideas and concepts introduced in the course of the presentation, irrespective of whether the ideas and concepts are protected by copyright. Upon payment of the presentation fee, the Client shall not acquire any exploitation and usage rights to the services presented.10.4 If the ideas and concepts contributed in the course of a presentation for the solution of communication tasks are not exploited in advertising materials designed by the Agency, the Agency shall be entitled to use the ideas and concepts presented elsewhere.11. property rights and copyright protection
11.1 All services provided by the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time. By paying the fee, the client shall only acquire the right of use (including reproduction) for the agreed purpose and to the agreed extent of use. In the absence of an agreement to the contrary with the Agency, the Client may only use the Agency's services himself for a period of 5 years for the home market. The acquisition of rights of use and exploitation of the Agency's services shall in any case be subject to full payment of the fees invoiced by the Agency for them. 11.2 Changes to the Agency's services, such as in particular their further development by the Client or by third parties acting on the Client's behalf, shall only be permissible with the express consent of the Agency and the payment of the fee for a total buy-out as per the offer and - insofar as the services are protected by copyright - of the copyright holder. 11.3 The Agency's consent shall be required for the use of the Agency's services that goes beyond the originally agreed purpose and scope and period of use, irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to a separate appropriate remuneration for this. Unless otherwise agreed, this shall amount to 50% of the original offer amount if the period of use exceeds 5 years and shall thereby be automatically extended to a further 5 years (with the exception of photography, see item 10.4.). 11.4 If the service of the agency also includes the creation of the photography, please note that Flare Talents e.U. can only pass on the rights to the photographic design to the client, but not the rights to photographed persons or objects - these must be agreed and observed separately. The rights of use to the photographic design are limited to a period of 3 years. In the event of an extension of the term, a fee of 50% of the processing price per picture shall be paid to the agency, thus granting use for a further 4 years. 11.5 The Agency's consent shall also be required for the use of the Agency's services or advertising material for which the Agency has prepared conceptual or design templates, after expiry of the Agency agreement, irrespective of whether this service is protected by copyright or not. 11.6 By confirming the GTC, the Artists declare that they hold the rights to pass on the presented work to Flare Talents for self-promotion and publication on the website and various social media platforms. 12. labelling
12.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the author on all advertising materials and in all advertising measures, without the Client being entitled to any remuneration for this. 12.2 Subject to the Customer's written revocation, which shall be possible at any time, the Agency shall be entitled to refer to the existing business relationship with the Customer by name and company logo on its own advertising media and in particular on the Internet website.13. Warranty and compensation
13.1 The Customer shall assert and substantiate any complaints in writing without delay, but in any case within three days of performance by the Agency. In the event of justified and timely complaints, the Customer shall only be entitled to improvement or replacement of the service by the Agency. Minor colour deviations of the printouts from the result in the production run shall not be recognised as complaints. 13.2 In the event of a justified complaint, the defects shall be rectified within a reasonable period of time, whereby the Customer shall enable the Agency to take all measures necessary to investigate and rectify the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for the Agency. 13.3 The reversal of the burden of proof in accordance with § 924 ABGB at the Agency's expense shall be excluded. The existence of the defect at the time of handover, the time of discovery of the defect and the timeliness of the notice of defect shall be proven by the Client. 13.4. 13.4 Claims for damages by the Client, in particular on account of delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential harm caused by a defect or on account of unlawful acts shall be excluded unless they are based on intent or gross negligence on the part of the Agency. 13.5 Any claim for damages may only be asserted within six months of knowledge of the damage.13.6 Claims for damages shall be limited in amount to the order value excluding taxes. 14. liability
14.1 The Agency shall carry out the work entrusted to it in accordance with generally recognised legal principles and shall draw the Client's attention in good time to any risks apparent to it. Any liability on the part of the Agency for claims made against the Client on the basis of the advertising measure (the use of a trademark) shall be expressly excluded if the Agency has fulfilled its obligation to inform the Client; in particular, the Agency shall not be liable for legal costs, the Client's own legal costs or the costs of publishing judgements, or for any claims for damages or similar claims by third parties. 14.2 The Agency shall only be liable for damages within the framework of the statutory provisions if it can be proven to have acted with intent or gross negligence. Liability for slight negligence shall be excluded. The existence of gross negligence shall be proven by the injured party. 15. Applicable law
The legal relationship between the Customer and the Agency shall be governed exclusively by Austrian law, to the exclusion of the international conflict-of-law rules. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. 16. Data protection
The Client and the Talent agree that personal data, such as: Name/company name, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the Client or the Talents, telephone number, fax number, e-mail address, bank details, credit card data, VAT numbers) for the purpose of contract performance and support, as well as for own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or former business relationship with the client (reference), shall be automatically and manually determined, stored, forwarded and processed. The Client and the Talents agree that they may be sent electronic mail for advertising purposes until revoked.This consent may be revoked at any time in writing by e-mail, fax or letter to the contact details stated at the top of the GTC. 17. Place of performance and jurisdiction
17.1 The place of performance shall be the registered office of the Agency. 17.2 Insofar as this contract refers to natural persons in the masculine form only, it shall refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used. 17.3 The place of jurisdiction for all disputes arising directly between the Agency and the Customer shall be the Austrian court with local and subject-matter jurisdiction for the Agency's registered office. The General Terms and Conditions in this version shall apply from 1 January 2018.