General terms and conditions

of prettysocial media International GmbH and its subsidiaries prettysocial media GmbH, prettysocial media Aps (DK), prettysocialmedia Netherlands BV (NL) and prettysocialmedia UK Ltd (UK), (short: psm)

1. Validity, conclusion of contract

1.1 psm provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between psm and the customer, even if no explicit reference is made to them.

1.2 The version valid at the time the contract is concluded is relevant and binding. Deviations from these and other additional agreements with the customer are only effective if they are confirmed in writing by psm.

1.3 Any terms and conditions of the customer will not be accepted, even if they are known, unless otherwise expressly agreed in writing in individual cases. PSM expressly contradicts the customer's general terms and conditions. There is no need for further objection to the customer's general terms and conditions by psm.

1.4 Changes to the General Terms and Conditions will be announced to the customer and will be deemed agreed if the customer does not object to the changed General Terms and Conditions in writing within 14 days; The customer is expressly informed of the importance of silence in the communication.

1.5 If individual provisions of these General Terms and Conditions are invalid, this will not affect the binding nature of the remaining provisions and the contracts concluded on the basis of them. The ineffective provision must be replaced by an effective one that comes closest to the meaning and purpose.

1.6 The offers from psm are subject to change and non-binding.

2. Social media channels

Before placing the order, psm expressly points out to the customer that the providers of “social media channels” (e.g. Facebook, hereinafter referred to as the provider) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which psm cannot calculate, that advertisements and appearances will be removed for no reason. In the event of a complaint from another user, the providers grant the opportunity to respond, but in this case the content will also be removed immediately. In this case, regaining the original, legal status may take some time. psm works on the basis of these providers' terms of use, over which it has no influence, and also uses these as the basis for an order from the customer. By placing the order, the customer expressly acknowledges that these terms of use (co-)determine the rights and obligations of any contractual relationship. psm intends to carry out the customer's order to the best of its knowledge and belief and to comply with the guidelines for social media channels. However, due to the currently valid terms of use and the easy possibility for every user to allege legal violations and thus have the content removed, psm cannot guarantee that the commissioned campaign can be accessed at any time.

3. Concept and idea protection

If the potential customer has already invited psm to create a concept and psm accepts this invitation before the main contract is concluded, the following regulation applies:

3.1 Through the invitation and acceptance of the invitation by psm, the potential customer and psm enter into a contractual relationship (“pitching contract”). This contract is also based on the General Terms and Conditions.

3.2 Commissioning third parties to render External Services shall either be in the name of the psm or in the name of the Customer but in any case for the Customer’s account. The psm shall select the relevant third party with care and ensure that it is appropriately qualified.

3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, as long as they reach the height of the work. The potential customer is not permitted to use and edit these parts without the consent of psm due to copyright law.

3.4 The concept also contains advertising-relevant ideas that do not reach the heights of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is produced later and thus as the origin of marketing strategy. Therefore, those elements of the concept that are unique and give the marketing strategy its characteristic character are protected. In particular, advertising keywords, advertising texts, graphics and illustrations, advertising materials, etc. are considered ideas within the meaning of this agreement, even if they do not reach the height of the work.

3.5 The potential customer undertakes to refrain from using the creative advertising ideas presented by psm as part of the concept outside the scope of a main contract to be concluded later s to commercially exploit or have exploited or to use or have used.

3.6 If the potential customer is of the opinion that psm presented him with ideas that he had already thought of before the presentation, he must inform psm of this within 14 days of the day of the presentation by email, citing evidence that allow a time allocation to be announced.

3.7 In the opposite case, the contracting parties assume that psm has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that the psm was used in the process.

3.8 The potential customer can release himself from his obligations under this point by paying appropriate compensation plus 19% sales tax. The exemption only occurs after psm has received full payment of the compensation.

4. Scope of services, order processing and the customer's obligation to cooperate

4.1 The scope of the services to be provided results from the service description in the service provider contract or any order confirmation from psm, as well as any briefing protocol (“offer documents”). Subsequent changes to the service content require written confirmation from psm. Within the framework specified by the customer, psm has freedom of design when fulfilling the order.

4.2 All services provided by psm (in particular all preliminary drafts, sketches, final artwork, brush proofs, blueprints, copies, color prints and electronic files) must be checked by the customer and approved by the customer within three working days of receipt by the customer. If they are not released on time, they are deemed to have been approved by the customer.

4.3 The customer will provide psm with all information and documents required to provide the service in a timely and complete manner. He will inform you of all circumstances that are important for the execution of the order, even if these only become known during the execution of the order. The customer bears the expense resulting from work having to be repeated or delayed by psm as a result of his incorrect, incomplete or subsequently changed information.

4.3 The customer is further obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyrights, trademarks, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of rights They are third parties and can therefore be used for the intended purpose. In the event of slight negligence or after fulfilling its duty to warn - at least in the internal relationship with the customer - psm is not liable for any violation of such third-party rights through documents provided. If a claim is made against psm by a third party due to such a legal violation, the customer shall indemnify and hold psm harmless; He must compensate psm for all disadvantages that psm incurs as a result of making use of third parties, in particular the costs of appropriate legal representation. The customer undertakes to support psm in defending against any claims from third parties. The customer provides psm with all documents for this purpose without being requested to do so.

5. Third-party services / commissioning of third parties

5.1 psm is entitled, at its own discretion, to carry out the service itself, to use expert third parties as vicarious agents when providing contractual services and/or to substitute such services (“third-party services”).

5.2 Third parties are commissioned as part of an external service either in their own name or in the name of the customer. psm will carefully select this third party and ensure that it has the necessary professional qualifications.

5.3 If psm orders necessary or agreed external services, the respective contractors are not vicarious agents of psm.

5.4 The customer must assume obligations towards third parties that extend beyond the term of the contract. This also expressly applies in the event of termination of the service provider contract for good cause.

6. Dates

6.1 Unless expressly agreed as binding, specified delivery or service deadlines are only approximate and non-binding. Binding appointment agreements must be recorded in writing or confirmed in writing by psm.

6.2 If psm's delivery/service is delayed for reasons for which it is not responsible, such as force majeure events and other unforeseeable events that cannot be prevented by reasonable means, the service obligations are suspended for the duration and to the extent of the obstacle and are extended deadlines accordingly. If such delays exceed two months, the customer and psm are entitled to withdraw from the contract.

6.3 If psm is in default, the customer can only withdraw from the contract after giving psm a reasonable grace period of at least 14 days in writing and this has expired without result. Claims for damages by the customer due to non-fulfillment or delay are excluded, unless evidence of intent or gross negligence is provided.

7. Early termination/cancellation

7.1 psm is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if:

(a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days;

(b) the customer continues to violate essential obligations under this contract, such as payment of an amount due or obligations to cooperate, despite a written warning with a grace period of 14 days.

(c) there are legitimate concerns about the creditworthiness of the customer and the customer neither makes advance payments at the request of psm nor provides suitable security before psm provides them;

7.2 The customer is entitled to terminate the contract only for important reasons without setting a grace period. An important reason exists only if psm continues to violate essential provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach of contract.

7.3 Cancellation / Conditions

(a) If the customer cancels a booked campaign up to 14 days before the start of the campaign, 15% of the invoice amount will be charged.

(b) If a booked campaign is canceled after the campaign has started and up to the day that marks half of the booked campaign period, 50% of the invoice amount will be charged.

(c) If a booked campaign is canceled after the campaign has started after the day that marks half of the booked campaign duration, 100% of the invoice amount will be charged.

8. Fee

8.1 Unless otherwise agreed, psm's claim to a fee arises for each individual service as soon as it has been provided. psm is entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of €20.000, or those that extend over a longer period as one month, psm is entitled to create interim invoices or advance invoices or to request payments on account.

8.2 The fee is a net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases, psm is entitled to a fee at the usual market rate for the services provided and the transfer of copyright and trademark rights of use.

8.3 All services provided by psm that are not expressly covered by the agreed fee will be paid for separately. All cash expenses incurred by psm must be reimbursed by the customer.

8.4 Cost estimates from psm are non-binding. If it is foreseeable that the actual costs will exceed those estimated by psm in writing by more than 15%, psm will inform the customer of the higher costs. The cost overrun is deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time announce cheaper alternatives. If the costs are overrun by up to 15%, a separate notification is not necessary. This cost estimate overrun is deemed to have been approved by the client from the outset.

8.5 For all work by psm that is not carried out by the customer for whatever reason, psm is entitled to the agreed fee. The crediting provision of Section 1168 ABGB is excluded. By paying the fee, the customer does not acquire any rights of use to work that has already been carried out; Concepts, drafts and other documents that have not been implemented must be returned to psm immediately.

9. Payment, retention of title

9.1 The fee is due for payment immediately upon receipt of the invoice and without deductions, unless special payment conditions are agreed in writing in individual cases. This also applies to the recharging of all cash outlays and other expenses. The goods delivered by psm remain the property of psm until the consideration has been paid in full, including all additional liabilities.

9.2 If the customer defaults on payment, the statutory default interest applies at the rate applicable to business transactions. Furthermore, in the event of late payment, the customer undertakes to reimburse psm for any dunning and collection costs incurred, to the extent that they are necessary for appropriate legal prosecution. In any case, this includes the costs of two reminder letters at the usual market rate of currently at least € 30.00 per reminder and a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.

9.3 If the customer defaults on payment, psm can make all services and partial services provided under other contracts concluded with the customer due immediately.

9.4 Furthermore, psm is not obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration remains unaffected.

9.5 If payment was agreed in installments, psm reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or additional claims are not paid on time (loss of deadline).

9.6 The customer is not entitled to set off his own claims against psm's claims, unless the customer's claim has been recognized in writing by psm or has been determined by a court.

10. Property Rights and Copyright

10.1 All services provided by psm, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, as well as the individual workpieces and design originals, remain the property of psm and can can be requested back by psm at any time - especially upon termination of the contractual relationship. By paying the fee, the customer acquires the right to use it for the agreed purpose. Unless otherwise agreed, the customer may only use psm's services in Austria. The acquisition of usage and exploitation rights to psm's services always requires full payment of the fees charged by psm. If the customer already uses psm's services before this point in time, this use is based on a rental agreement that can be revoked at any time.

10.2 Changes or modifications to psm's services, such as in particular their further development by the customer or by third parties working for them, are only permitted with the express consent of psm and - if the services are protected by copyright - of the author.

10.3 The consent of psm is required for the use of psm services that go beyond the originally agreed purpose and scope of use - regardless of whether this service is protected by copyright. For this, psm and the author are entitled to separate, appropriate remuneration.

10.4 For the use of psm services or advertising materials for which psm has developed conceptual or design templates, the consent of psm is also required after the psm contract has expired, regardless of whether this service is protected by copyright or not.

10.5 For uses in accordance with paragraph 4, psm is entitled to the full psm remuneration agreed in the expired contract in the first year after the end of the contract. In the 2nd or 3rd year after the contract expires, only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more PSM compensation is payable.

10.6 The customer is liable to psm for any unlawful use in the amount of minimum twice the fee appropriate for this use.

11. Labeling

11.1 psm is entitled to refer to psm and, if necessary, to the author on all advertising materials and in all advertising measures, without the customer being entitled to any payment for this.

11.2 Subject to the customer's possible written revocation at any time, psm is entitled to refer to the existing or previous business relationship with the customer on its own advertising media and in particular on its Internet website with the name and company logo (reference note).

12. Warranty

12.1 The customer must report any defects in psm’s services immediately, in any case within eight days of delivery/service by psm, and hidden defects within eight days of recognizing them, in writing with a description of the defect; otherwise the service is deemed approved. In this case, the assertion of warranty and compensation claims as well as the right to challenge errors due to defects is excluded.

12.2 In the event of justified and timely notification of defects, the customer has the right to have psm improve or replace the delivery/service. psm will correct the defects within a reasonable period of time, whereby the customer enables psm to take all measures necessary to investigate and correct the defects. psm is entitled to refuse to improve the service if this is impossible or involves a disproportionate amount of effort for psm. In this case, the customer is entitled to the statutory conversion or reduction rights. In the event of an improvement, it is the responsibility of the client about the transmission of the defective (physical) item at his own expense.

12.3 It is also the responsibility of the client to check the service for legal admissibility, in particular competition, trademark, copyright and administrative law. psm is only obliged to carry out a rough check of legal admissibility. In the event of slight negligence or after fulfillment of any obligation to warn the customer, psm is not liable for the legal admissibility of content if it was specified or approved by the customer.

12.4 The warranty period is six months from delivery/service. The right of recourse against psm in accordance with Section 933b Paragraph 1 ABGB expires one year after delivery/service. The customer is not entitled to withhold payments due to complaints. The presumption regulation of Section 924 ABGB is excluded.

13. Liability and product liability

13.1 In cases of slight negligence, liability of psm and its employees, contractors or other vicarious agents (“people”) for property damage or financial damage to the customer is excluded, regardless of whether it is direct or indirect damage, loss of profit or consequential damage due to defects Default, impossibility, positive breach of contract, negligence in concluding the contract, defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that psm's liability is excluded or limited, this also applies to the personal liability of its "people".

13.2 Any liability of psm for claims that are raised against the customer due to the service provided by psm (e.g. advertising measure) is expressly excluded if psm has fulfilled its obligation to provide information or if such a duty was not apparent to it, in which case slight negligence doesn't do any harm. In particular, psm is not liable for legal costs, the customer's own legal fees or costs of publication of judgments as well as for any claims for damages or other claims by third parties; The customer must indemnify and hold psm harmless in this regard.

13.3 The customer's claims for damages expire six months after becoming aware of the damage; in any case after three years from the breach of psm. Claims for damages are limited to the net order value.

14. Data protection (visual highlighting in accordance with judicature)

The customer agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card details, VAT number) for the purpose of fulfilling the contract and supporting the customer as well as for our own advertising purposes, for example to send offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of pointing out the existing or previous business relationship with the customer (reference note), stored and processed. The client agrees that electronic mail will be sent to him for advertising purposes until revoked.

This consent can be revoked at any time in writing by email, fax or letter to the contact details listed at the top of the General Terms and Conditions.

15. Applicable Law

The contract and all mutual rights and obligations as well as claims between psm and the customer derived from it are subject to the local substantive law, where psm or one of its subsidiaries is registered, excluding its reference norms and excluding the UN Convention on Contracts for the International Sale of Goods.

16. Place of performance and jurisdiction

16.1 The place of performance is the respective registered office of psm or its respective subsidiary. When shipping, the risk passes to the customer as soon as psm has handed over the goods to the transport company chosen by them.

16.2 The place of jurisdiction for all legal disputes arising between psm and the customer in connection with this contractual relationship is the court with material jurisdiction for psm's registered office or the office of the respective subsidiary. Regardless of this, psm is entitled to sue the customer at its general place of jurisdiction.

16.3 If in this contract references to natural persons are only given in the male form, they refer to women and men in the same way. When applying the term to specific natural persons, the gender-specific form must be used.