General Terms and Conditions

These terms apply to all services, offers and contracts of the Agency with its Clients. They also apply to future business, even where they are not referred to separately.

The terms are attached to every agency or framework agreement and can be viewed at any time at kubanka.at/terms and, in the binding German version, at kubanka.at/agb. By concluding the contract, the Client expressly accepts their validity. The version in force when the contract is concluded applies.

The terms also apply to the pre-contractual relationship, in particular where the Agency prepares and presents a concept at the invitation of a prospective Client (clause 15).

Individual agreements, in particular an agency agreement, an offer or a service description, take precedence over these terms. The Client’s own terms and conditions apply only if the Agency expressly agrees to them in writing.

If the Client is a consumer within the meaning of the Austrian Consumer Protection Act (KSchG), these terms apply only to the extent that mandatory provisions of consumer law do not conflict with them.

The aim of the collaboration is to optimise and extend the advertising and communication presence of the Client, its company, its products and its services in the market. Both sides are connected by a relationship of mutual trust. These terms are intended to avoid misunderstandings about the mutual rights and obligations and to create legal clarity.

The collaboration is designed for the long term and is based on professionalism, transparency and mutual respect. Market conditions, technological developments and business objectives may change: the Agency adapts its services flexibly to new requirements, and the Client provides the necessary information in good time.

The Agency provides its services to high quality standards.

Unless agreed otherwise, both sides are free to enter into similar business relationships with other companies. Exclusive collaboration requires a separate written agreement.

The Client commissions the Agency with the advertising and communication support of its products, its services or its company itself (image advertising, corporate identity) to the agreed extent. The contract is concluded with the signed order or with the written acceptance of an offer from the Agency.

The type and scope of the services result from the offer, the service description or the agency agreement. Changes to or extensions of the scope of services require a written agreement.

Depending on the order, the support may include in particular the following services:

• advertising preparation, development of advertising strategies and design concepts
• advertising design, advertising copy, rough layouts and copywriting
• photo documentation and photographic coverage of events
• social media content such as posts and stories, and paid advertising placements
• digital key visuals and advertising materials, also for print and merchandise, such as lanyards, posters or caps
• creation of websites and their ongoing maintenance, such as updates, news articles or team pages
• measurement of interactions on websites and reports on them (analytics, website reporting)
• management, upkeep and interaction on social media channels (social media management)
• direct marketing and customer retention in copy and layout, such as newsletters in line with the corporate identity
• sales promotion: advice, planning and implementation, event support, design of display material, brochures and other sales aids
• conception, development, implementation, coordination and supervision of client events
• procurement and review of the documents required for advertising measures, such as photographs and drawings
• monitoring of competitors and competing products
• data backup on systems inside and outside the Agency (clause 20)
• regular reports on the work done (work reporting)

The Agency produces the contractual services on schedule. It may use AI-assisted tools in doing so and reviews their results before handing them over to the Client (privacy policy, section Use of artificial intelligence). This does not affect the Client’s duty to review under clause 8.

If the Client approves a draft proposed by the Agency, the cost estimate associated with that proposal is also deemed approved.

The Agency is entitled, at its own discretion, to perform the services itself, to use competent third parties as vicarious agents in providing them, or to have services provided by third parties (“third-party service”).

Third parties are commissioned in the Agency’s own name or in the name of the Client, but in any case for the account of the Client. Where the Agency commissions third parties in its own name, it remains the Client’s sole contractual partner.

The Agency selects third parties carefully and ensures that they have the necessary professional qualifications.

The Agency charges costs for external service providers and materials in accordance with clause 10.

The Client provides the Agency with all data, information, documents, materials and access required for or useful to its work, in particular on marketing objectives, markets and products, on the agreed date, in good time and in full. The Agency treats them in strict confidence (clause 18).

The Client ensures that the documents provided, such as texts, photos, logos, product information and templates, are free of third-party rights or that the necessary rights have been obtained. If third parties assert claims in connection with such documents, the Client indemnifies and holds the Agency harmless.

The Client informs the Agency of the available advertising budget. In the case of ongoing support, before each new financial year the Client states in writing the expected scope of the planned advertising activities and the budget intended for them, and notifies the Agency of changes to this planning without delay.

Delays resulting from insufficient or late cooperation by the Client are not the responsibility of the Agency.

The Client announces orders with a lead time of at least three weeks, so that the Agency has sufficient time to develop and create the works. This applies in particular to concepts, advertising materials and other creative services.

The Client informs the Agency as early as possible about upcoming events, campaigns and all related expectations of the service.

The Agency may decline ad hoc orders and short-notice change requests (“last minute”) if they cannot be implemented in the time available.

If the Client submits change requests subsequently or without observing the lead time, completion may be delayed and additional costs may arise. In this case, the Agency shows the Client, in good time and in a comprehensible way, how this affects the schedule and costs.

If the Agency accepts an order despite the lead time not having been observed, it may charge an increased hourly rate or an express surcharge for it, which it notifies to the Client in advance.

The Agency can be reached by telephone and email on working days, Monday to Friday, between 9 am and 6 pm. Outside these hours, availability depends on prior arrangement and the availability of the responsible contact person.

For urgent matters outside business hours, the Client may ask for an emergency contact option if the Agency provides one. The Agency will then respond as best it can.

The Agency endeavours to answer enquiries and messages within 24 hours. If an enquiry requires a longer processing time, the Agency informs the Client of this.

The Agency accepts no liability for delays caused by insufficient availability of the Client.

The Client is obliged to review all works of the Agency carefully before they are approved, published, reproduced or sent. In particular, telephone numbers, email addresses and links on websites, the spelling of written works and of texts intended for publication, as well as images, videos, AI-generated content, key visuals and all other works must be checked.

With its approval, the Client assumes responsibility for the correctness of text, image and content. The Agency is not liable for errors, wrong versions or incorrect deliveries and mailings that the Client could have recognised during this review. The Client indemnifies and holds the Agency harmless with regard to third-party claims based on content approved by the Client.

After completion, the Client is obliged to accept the service unless it has material defects. The Client notifies the Agency of defects in writing and in a comprehensible way without delay after handover. The statutory warranty rights of consumers remain unaffected.

The Agency informs the Client in good time of legal risks of the content or design of planned advertising measures that are recognisable to it. If it considers a legal review, for example under competition law, by a particularly competent person to be necessary, it informs the Client accordingly.

If the Client nevertheless insists on implementing the advertising measure despite such a notice, the Agency is not liable for any resulting disadvantages and risks. The Client indemnifies and holds the Agency harmless with regard to any third-party claims.

In cases of slight negligence, any liability of the Agency and of its employees, subcontractors and other vicarious agents for property damage and financial loss of the Client and third parties is excluded, irrespective of whether it concerns direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo or defective or incomplete performance.

These limitations do not apply to personal injury, nor to the extent that mandatory statutory provisions, in particular of the Consumer Protection Act, provide for further liability.

The amount of the fee results from the offer, the cost estimate or the agency agreement. If the Client has approved a written cost estimate, the fee is based on the terms set out in it.

The Agency charges on a time-and-materials basis at the agreed hourly rate or, if this has been demonstrably negotiated and agreed, a flat fee, for example a monthly flat fee. Advertising measures not covered by a flat fee are, unless agreed otherwise, charged separately at the agreed hourly rate.

All prices are net plus statutory value added tax, unless they are expressly designated as gross prices. Towards consumers, the Agency states gross prices.

Costs for external service providers and materials, such as licences, stock photos, printing costs or advertising placements, are charged separately and require the Client’s prior consent.

For journeys beyond a radius of 20 km around the Agency’s place of business, the Agency charges the official Austrian mileage allowance (amtliches Kilometergeld) at the rate applicable at the time, without separate consent being required. Overnight stays and other expenses in connection with a business trip are charged in addition.

The Agency may require a down payment when the contract is concluded; the remaining amount is then due on completion. Events are charged separately according to effort: 50 % is payable as an advance and 50 % is due on completion. If the expenses required to fulfil the order are expected to exceed 70 % of the total volume, the Agency may require a correspondingly higher advance.

The Agency may adjust its fees annually in line with market developments. It notifies the Client of price increases in writing at least 30 days in advance.

Unless agreed otherwise in writing, invoices are due for payment without deduction within 7 calendar days of the invoice date.

In the event of late payment, default interest is charged at the statutory rate, and for transactions between businesses at the rate applicable to them. The Client also reimburses all dunning and collection costs necessary for appropriate legal action. The Agency may instruct a lawyer for this purpose at the Client’s expense.

The Agency may withhold services already provided and release them only once all outstanding claims have been settled. The Client acquires rights of use only upon payment in full (clause 13).

Payments can be made by bank transfer or via the payment page kubanka.at/payment, where the payment is processed by Stripe.

If the Client withdraws from the order before the project starts through no fault of the Agency, for example before a film shoot, a photo session or event coverage, the Agency may charge the costs and cash expenses actually incurred as well as the loss of profit for the entire project.

The statutory right of withdrawal of consumers under clause 23 remains unaffected.

Upon payment of the fee in full, the Client acquires the right to use the Agency’s services for the agreed purpose, to the agreed extent and for the agreed duration. Under Austrian law, copyright itself cannot be transferred and remains with the author.

Unless expressly agreed otherwise, the rights of use for use on social media channels and in non-commercial online publications pass to the Client for a period of five years. If longer use is foreseeable or planned when the contract is concluded, a correspondingly longer period of use may be agreed.

For all other uses: in the absence of another agreement, the Client may use the services only for the duration of the contractual relationship. After it ends, any further use is permitted only with the Agency’s written consent, which must be obtained separately for each use.

The scope, framework and duration of use are governed by the respective right of use. The Agency calculates the fee for rights of use on a standardised basis according to the recommendations of Design Austria via nutzungsrechte.online.

The author must be credited with every use.

The transfer or licensing of rights of use to third parties requires the prior written consent of the Agency to be effective.

All services of the Agency, including image and video material, presentation materials such as suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork and concepts, source code, websites and key visuals, including individual parts of them, as well as the individual work pieces and original drafts, remain the property of the Agency and are protected by copyright. The Agency may reclaim them at any time, in particular when the contractual relationship ends.

Unless agreed otherwise, the Agency is not obliged to hand over working files, open data, original drafts or concepts.

Websites created by the Agency and domains and servers acquired by it remain the property of the Agency. The Client acquires rights of use to them for the duration of the agreed collaboration.

The Agency may credit the author on all works, key visuals and advertising materials and discreetly add its name, brand or logo; this does not give rise to any claim for payment by the Client. The Agency agrees the placement with the Client; if the Client expressly objects, it is omitted.

The Agency expressly reserves claims for damages for unauthorised use of its services.

If a prospective Client asks the Agency to prepare and present a concept in advance, and the Agency accepts this invitation before the main contract is concluded, both enter into a pre-contractual relationship with the request and the acceptance of the concept work, to which these terms apply. The prospective Client acknowledges that the Agency provides cost-intensive preliminary work in preparing the concept.

The Agency’s concepts are protected in all their parts by the Austrian Copyright Act to the extent that they reach the threshold of originality. Independent use or adaptation of individual parts without the Agency’s written consent is therefore not permitted to the prospective Client.

Ideas that do not (yet) reach the threshold of originality are not protected by the Copyright Act. However, as the spark at the beginning of a creative process, they can be the origin of later projects and advertising strategies. All elements of a concept that are distinctive and capable of giving a marketing strategy its characteristic stamp are therefore protected. Ideas within the meaning of these terms include in particular advertising slogans, advertising texts, specially created graphics and illustrations and advertising materials, even if they do not reach the threshold of originality on their own.

If the prospective Client is of the opinion that it already knew one or more of the ideas presented, it informs the Agency within 14 days of the presentation, enclosing evidence. Otherwise, it is to be assumed that the Agency has presented only new and therefore protected ideas.

The prospective Client may not exploit or use, or have exploited or used, the ideas and products presented in the course of the concept work commercially or economically outside a main contract to be concluded with the Agency. If concepts or ideas are used without the Agency’s written consent, it reserves the right to enforce claims for damages.

The Agency may use its work results or excerpts from them free of charge for self-promotion, also after the collaboration has ended, in particular on its website, in social media, in portfolios and in pitch documents. It may present them on third-party platforms such as award sites and industry portals unless the Client expressly prohibits this.

The Agency may name the Client in its list of references and report on successful projects in press releases. If the Client does not wish this, it informs the Agency in writing.

The Agency does not use confidential or sensitive content of the Client that is not intended for the public for self-promotion.

For the Agency’s name and logo on the Client’s advertising materials, clause 14 applies.

Works by the same author may resemble each other in their appearance. Designs are original creative works and naturally related in their appearance; the image editing and creative style of a work may also be similar. This is to be understood as the author’s “signature”. The Client acknowledges that the Agency’s works may show unintended similarities across clients.

The Client is aware that the Agency works for other clients, including clients from the same industry, for example several brands in the automotive sector.

The Agency treats all information and documents that become known to it in the course of the collaboration and are not intended to be passed on to third parties in strict confidence. It obliges employees and third parties who receive such information to carry out the work to the same confidentiality. This obligation continues after the end of the contract.

Confidential information means all economic, technical and other data, communications, documents and the like, including textual, tabular, graphic, photographic, pictorial, electronic, oral or other communications, computer software and hardware, know-how and all other information and works disclosed between the parties, insofar as they could be of economic interest to third parties and are not already publicly known, irrespective of whether they are disclosed in preliminary talks or later.

Third parties are competitors, authorities and all other persons who are not identical with one of the parties, including shareholders, subsidiaries, spouses and other relatives of the parties. Employees, subcontractors, tax advisers, auditors, lawyers and comparable external advisers of a party are not third parties insofar as they are bound to secrecy by profession or by a comprehensive confidentiality agreement.

The parties do not pass on confidential information of the other party to third parties and do not make it public, unless the other party expressly agrees in writing or there is a legal obligation to disclose it. Before a contract is concluded, this also applies to the fact that talks are being held between them and to their content. Confidential information may be used only for the purposes of the joint project. The Agency’s rights under clause 16 remain unaffected.

There is no disclosure if confidential information becomes public or known to third parties after the contract is concluded without either party being responsible for it.

Documents and data carriers containing confidential information of the other party must be returned to it as soon as they are no longer needed for the joint project. Copies and own records containing confidential information of the other party may be made only for own purposes and must be destroyed as soon as they are no longer needed. If a party passes on confidential information to persons who are not third parties, it ensures that they are bound to confidentiality.

If a party is obliged to disclose confidential information of the other party to third parties, it notifies the other party in writing without delay as soon as it becomes aware of this obligation.

The Agency properly keeps the works, reports, print documents, films and illustrations produced for the Client for one year from the end of the respective communication measure and hands them over to the Client on request during this time.

After this period expires or when the contract ends, the documents are handed over to the Client at its request, otherwise destroyed.

The costs of compiling, sending and packing data and documents, of storage beyond the agreed period and, where applicable, of removal and destruction and the related activities and insurance are borne by the Client.

The Agency may destroy documents that are no longer needed, such as manuscripts, sketches and drafts of advertising measures that were not realised, immediately.

The Agency processes personal data of the Client and its contact persons in accordance with the General Data Protection Regulation (GDPR) and the Austrian Data Protection Act (DSG), in particular to perform the contract. Details are set out in the privacy policy.

Data and project documents are backed up several times locally on multiple hard drives and a NAS system of the Agency. For storing and transferring files, the Agency may use cloud services and storage media of third-party providers, such as Google Drive, WeTransfer or Dropbox.

The Client’s social media channels, for example on TikTok, Instagram or Facebook, are managed from a separate device used exclusively for this purpose.

If the Agency processes personal data on behalf of the Client for which the Client is the controller, for example when sending newsletters or maintaining websites and social media channels, the parties conclude a data processing agreement in accordance with Art. 28 GDPR.

Services provided on or with third-party platforms and tools, such as TikTok, Instagram and Facebook, website builders and content management systems such as Wix, newsletter services such as CleverReach, software from Adobe or Google services such as Google Analytics, are additionally subject to the terms of use and privacy terms of the respective providers.

The Agency has no influence on changes to these terms, functions, algorithms and reach, or on blocks or restrictions imposed by the providers, and is not liable for them.

The contract begins with the signed order and runs for an indefinite period or for the agreed duration.

If a term has been agreed, for example twelve months, the contract is extended by a further twelve months each time unless it is terminated in writing no later than three months before the end of the term.

If a monthly flat fee has been agreed, the minimum term agreed in the contract applies; thereafter, the flat-fee arrangement may be terminated with two weeks’ notice to the end of a month, unless agreed otherwise in the agency agreement.

Either party may terminate the contract before the end of the agreed term for good cause, in particular in the event of a serious breach of contract or irreconcilable differences. Such termination is made in writing and states the reasons clearly.

Notices of termination require written form. After the end of the term or upon effective termination, the obligations of both parties end in accordance with these terms; provisions that by their nature continue to apply, in particular on rights of use, confidentiality, retention and liability, remain in force.

In the event of termination, the parties work together cooperatively to ensure a smooth transition.

If the Client is a consumer and the contract was concluded at a distance, for example by email or telephone, or away from the Agency’s business premises, the Client may withdraw from the contract within 14 days of the day the contract was concluded without giving any reason.

To exercise the right of withdrawal, the consumer informs the Agency (Kubanka Smart Media Solutions, Martin Kubanka, Roschegasse 3/26, 1110 Vienna, Austria, martin@kubanka.at) of the decision to withdraw from the contract by means of a clear statement, for example by email or letter. The consumer may use the model withdrawal form below, but this is not obligatory. To meet the withdrawal deadline, it is sufficient to send the statement before the deadline expires.

If the consumer expressly requests that the Agency begin the service during the withdrawal period and then withdraws, the consumer pays a pro rata amount corresponding to the services provided up to that point in relation to the agreed total price. The right of withdrawal expires when the service has been fully performed and the consumer, before performance began, expressly agreed and acknowledged that the right of withdrawal is lost once the contract has been fully performed.

In all other respects, the mandatory provisions of the Austrian Consumer Protection Act (KSchG) and the Distance and Off-Premises Contracts Act (FAGG) apply to consumers.

Amendments and additions to the contract require written form. Written form is also satisfied by email unless agreed otherwise.

Austrian law applies, excluding the conflict-of-law rules of private international law and the UN Convention on Contracts for the International Sale of Goods. Towards consumers, this choice of law applies only insofar as it does not deprive them of the protection of mandatory provisions of the country in which they have their habitual residence.

The place of performance is the Agency’s registered office in Vienna. The court having subject-matter jurisdiction for the Agency’s registered office has jurisdiction over disputes arising from the contract. For actions against consumers, the statutory place of jurisdiction under § 14 KSchG applies.

Should individual provisions of these terms or of the contract be or become invalid, or should the contract contain gaps, the validity of the remaining provisions is not affected. In place of the invalid provision or to fill the gap, the parties shall agree on the valid provision that corresponds to or comes closest to the meaning and purpose of the invalid provision.

These terms are also available in German (kubanka.at/agb). The German version is legally binding.