AGB

English version

1. Scope, Conclusion of Contract

1.1 Martin Wetzel Design provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between Martin Wetzel Design and the client, even if no explicit reference is made to them. The GTC apply both to business-to-business (B2B) as well as to business-to-consumer (B2C) transactions, whereby any mandatory provisions of consumer protection law (KSchG) remain unaffected for consumers.

1.2 The version valid at the time the contract is concluded is decisive. Deviations from these GTC and any supplementary agreements with the client are only effective if confirmed by Martin Wetzel Design in writing (email is sufficient).

1.3 Any business terms of the client are not accepted even if Martin Wetzel Design is aware of them, unless they are expressly agreed upon in writing in a particular case. Martin Wetzel Design explicitly objects to any terms of the client. No further objection by Martin Wetzel Design to the client’s terms is required.

1.4 Any changes to these GTC will be communicated to the client in writing. Business clients (B2B) have the right to object to the changes in writing within 14 days. The notice to the client will expressly refer to the significance of failing to object as well as to the specific clauses that have been changed. Changes to key contractual content, especially those affecting performance details or fees, always require the explicit consent of the client. For consumers (B2C), changes only take effect if they have explicitly agreed to them.

1.5 Should individual provisions of these GTC be invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision is to be replaced by a valid provision that most closely reflects its meaning and purpose.

1.6 The offers made by Martin Wetzel Design are non-binding and subject to change. To consumers, offers are considered binding only if they are explicitly and in writing designated as such.

2. Social Media Channels

Martin Wetzel Design explicitly advises the client before order placement that providers of “social media channels” (e.g. Instagram, hereinafter referred to as “providers”) reserve the right in their terms of service to reject or remove advertisements or promotional content for any reason. These providers are therefore not obligated to distribute content and information to users. Consequently, there is a non-quantifiable risk, beyond Martin Wetzel Design’s control, that advertisements and promotional content might be removed without cause. In the event of a complaint from another user, the providers may allow a counterstatement, but the content is still removed immediately. Restoring the original lawful state can take some time.

Martin Wetzel Design operates on the basis of these providers’ terms of service, which it cannot influence, and also applies them to the client’s contract. By placing an order, the client acknowledges that these terms of service (co-)determine the rights and obligations of a possible contractual relationship. Martin Wetzel Design aims to execute the client’s order to the best of its knowledge and ability and to comply with the guidelines of the “social media channels.” However, due to the currently valid terms of service and the ease with which any user can claim legal violations and thus trigger a removal, Martin Wetzel Design cannot guarantee that the commissioned campaign is accessible at all times.

3. Concept and Idea Protection

3.1 If the prospective client invites Martin Wetzel Design to create a concept in advance, and Martin Wetzel Design accepts this invitation before the conclusion of the main contract, the prospective client enters into a contractual relationship (“pitching contract”) with Martin Wetzel Design. These GTC also apply to that contract.

3.2 The prospective client acknowledges that Martin Wetzel Design incurs cost-intensive preliminary work by developing the concept, even though the client itself has not yet undertaken any performance obligations.

3.3 The concept, in its linguistic and graphic components—provided they reach the threshold of a protected work—falls under the protection of copyright law. The prospective client may not use or modify those parts without Martin Wetzel Design’s consent, given copyright protections.

3.4 The concept additionally contains advertising ideas that may not reach the threshold of copyright protection but form the basis of a potential marketing strategy. These ideas are likewise protected.

3.5 The prospective client undertakes neither to commercially exploit nor to allow third parties to exploit the creative advertising ideas presented by Martin Wetzel Design outside the context of a future main contract.

3.6 If the prospective client believes that ideas were already known before the presentation, they must notify Martin Wetzel Design within 14 days of the presentation by email, providing supporting evidence.

3.7 If no such communication is made within this period, both parties assume Martin Wetzel Design presented the prospective client with a new idea.

3.8 The prospective client may buy out of these obligations by paying suitable compensation plus 20% VAT. Only after full payment are the corresponding rights of use granted.

4. Scope of Services, Order Execution, and Client’s Duties to Cooperate

4.1 The scope of the services is defined in the description in the agency contract or any order confirmation by Martin Wetzel Design, as well as in any briefing record (“offer documents”). Changes require written confirmation. Within the framework defined by the client, Martin Wetzel Design is free to design at its own discretion.

4.2 All services (drafts, sketches, etc.) must be reviewed by the client within three working days and approved. If no feedback is received within this period, they are deemed approved.

4.3 The client will provide Martin Wetzel Design in a timely manner with all information and documents needed for performance of the order and is liable for damages resulting from incorrect or incomplete information.

4.4 The client guarantees that the materials it provides (e.g. photos, logos) are free from third-party rights. Martin Wetzel Design is not liable in cases of mere negligence or after having fulfilled its duty of warning in respect of any infringements of third-party rights. Should Martin Wetzel Design nevertheless be held liable by third parties, the client shall hold it harmless and indemnify it.

5. Third-Party Services / Commissioning of Third Parties

5.1 Martin Wetzel Design may, at its discretion, have services rendered in whole or in part by third parties (“third-party service”).

5.2 The commissioning of third parties is carried out either in Martin Wetzel Design’s own name or, after prior notice, in the name of the client. Martin Wetzel Design selects these third parties carefully.

5.3 The client assumes any obligations to third parties (which are named to the client) that extend beyond the term of the contract. This explicitly applies even in the event of termination of the agency contract for good cause.

6. Deadlines

6.1 Delivery or performance deadlines are only binding if they have been expressly agreed upon in writing.

6.2 If delivery or service is delayed for reasons not attributable to Martin Wetzel Design (force majeure, unforeseen events, etc.), the performance obligations are suspended for the duration and scope of the impediment, and any deadlines are extended accordingly. If such delays persist for more than two months, both the client and Martin Wetzel Design may withdraw from the contract.

6.3 If Martin Wetzel Design is in default, the client may only withdraw from the contract after granting Martin Wetzel Design a reasonable grace period of at least 14 days in writing, and if this period elapses without success. The client’s claims for damages due to non-performance or delay are excluded unless Martin Wetzel Design acted with intent or gross negligence.

7. Early Termination

7.1 Martin Wetzel Design is entitled to terminate the contract with immediate effect for good cause, in particular if

a) performance of the service becomes impossible for reasons attributable to the client or is further delayed despite a 14-day grace period;
b) the client continuously breaches material obligations under this contract (e.g. payment of an invoiced amount when due, duties to cooperate) despite a written warning and 14-day grace period;
c) legitimate concerns regarding the client’s creditworthiness arise, and the client neither makes advance payments nor provides suitable security at Martin Wetzel Design’s request.

7.2 The client is entitled to terminate the contract without notice for good cause, especially if Martin Wetzel Design continuously breaches significant provisions of the contract despite a written warning and a grace period of at least 14 days to remedy the breach.

8. Remuneration (Fee)

8.1 Unless otherwise agreed, Martin Wetzel Design’s entitlement to remuneration arises for each individual service once it has been provided. Martin Wetzel Design may require advances to cover expenses. For an order volume (annually) of € 10,000.00 or more, or projects extending over a longer period, Martin Wetzel Design is entitled to issue interim or advance invoices or call for installment payments.

8.2 All fees are stated net plus statutory VAT. Unless otherwise agreed, Martin Wetzel Design is entitled to a customary market fee for the services rendered and the transfer of use rights under copyright and trademark law.

8.3 All services not expressly covered by the agreed fee are billed separately. The client will reimburse all cash expenses incurred by Martin Wetzel Design.

8.4 Martin Wetzel Design’s cost estimates are non-binding. If it becomes apparent that the actual costs will exceed the estimate by more than 15%, Martin Wetzel Design will inform the client. Such cost overrun is deemed approved by the client if the client does not object in writing within three working days and simultaneously indicates less expensive alternatives. Cost overruns of up to 15% do not require a special notice; they are deemed approved in advance.

8.5 If the client modifies or discontinues work without Martin Wetzel Design’s involvement—regardless of any ongoing collaboration—the client must pay Martin Wetzel Design for the work done so far and reimburse all incurred costs. Unless the termination results from gross negligence or willful misconduct by Martin Wetzel Design, the client must also pay the full agreed remuneration (commission). The offsetting remuneration claim under § 1168 ABGB is excluded. Furthermore, the client shall hold Martin Wetzel Design harmless against third-party claims, especially those of the contractor’s subcontractors. Upon payment, the client does not acquire any usage rights for the work already performed; any unused concepts, drafts, and other materials must be returned immediately to Martin Wetzel Design.

9. Payment, Retention of Title

9.1 The fee is due immediately upon receipt of invoice and payable without deduction, unless otherwise agreed in writing. Any goods delivered by Martin Wetzel Design remain its property until the total payment of the invoice, including ancillary charges.

9.2 In the event of payment default by the client, statutory default interest at the rate for business transactions shall apply. Moreover, the client agrees to reimburse all reminder and collection costs reasonably required for legal enforcement, in particular the costs of at least two written reminders at a customary rate, currently € 20.00 each, plus any additional collection or legal fees. Further claims remain unaffected.

9.3 In the event of the client’s payment default, Martin Wetzel Design may declare all services and partial services provided under other contracts with the client immediately due.

9.4 Furthermore, Martin Wetzel Design has no obligation to provide further services until any outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected.

9.5 If payment by installments has been agreed upon, Martin Wetzel Design reserves the right, in the event of delay in payment of any partial amount or ancillary claims, to demand immediate payment of the entire remaining debt (loss of installment payment terms).

9.6 The client is not entitled to offset its own claims against claims of Martin Wetzel Design unless such claims are recognized in writing by Martin Wetzel Design or have been judicially established.

10. Ownership Rights and Copyright

10.1 All services provided by Martin Wetzel Design—including those in presentations (such as ideas, sketches, drafts, scribbles, concepts, negatives, slides)—as well as individual parts thereof, remain the property of Martin Wetzel Design. This also applies to individual originals of designs and artworks, which can be reclaimed at any time by Martin Wetzel Design (especially upon termination of the contractual relationship). By paying the agreed fee, the client acquires the right to use these services for the agreed purpose. Unless otherwise agreed, the client may only use Martin Wetzel Design’s work within Austria. The acquisition of rights of use and exploitation under copyright and trademark law requires the complete payment of the fees charged by Martin Wetzel Design. If the client makes use of the services prior to payment in full, such use is based on a revocable loan agreement.

10.2 Changes or modifications of Martin Wetzel Design’s work—especially further development by the client or third parties—are only permitted with the express consent of Martin Wetzel Design and, where applicable, that of the author if the work is protected by copyright. The release of all so-called “open files” is expressly not part of the contract. Martin Wetzel Design is under no obligation to provide these unless explicitly agreed. Accordingly, without contractual assignment of the usage rights including for “electronic work,” the client has no legal claim to these files.

10.3 Any usage of Martin Wetzel Design’s services extending beyond the originally agreed purpose and scope—whether or not protected by copyright—requires Martin Wetzel Design’s consent. Martin Wetzel Design and the author are entitled to appropriate additional remuneration for such usage.

10.4 After the agency contract expires, any further usage of the services or advertising materials for which Martin Wetzel Design has provided conceptual or design templates—whether or not protected by copyright—requires Martin Wetzel Design’s express consent.

10.5 For usages under clause 10.4, Martin Wetzel Design is entitled, in the first year following the end of the contract, to the full agency fee agreed upon in the expired contract. In the second and third years, it is entitled to half or a quarter, respectively, of the previously agreed fee. As of the fourth year after the contract ends, no further agency fee is payable.

10.6 The client is liable to Martin Wetzel Design for any unauthorized use, at double the amount of the appropriate fee for that usage.

11. Attribution

11.1 Martin Wetzel Design is entitled to place references to itself or, where appropriate, to the author, on all advertising materials and in all advertising measures, without entitling the client to any remuneration.

11.2 Subject to the client’s right to revoke this in writing at any time, Martin Wetzel Design may name the client and display the client’s company logo on its own advertising materials and particularly on its website, referencing an existing or past business relationship (reference notice).

12. Warranty

12.1 The client must report any defects immediately, within eight days upon receipt of goods or services (or upon discovery of hidden defects), in writing and describing the defect. Otherwise, the performance is deemed approved. In such a case, any warranty and compensation claims as well as the right to contest errors based on defects are excluded.

12.2 In the event of a justified and timely notice of defects, the client is entitled to remedy or replacement of the goods/services by Martin Wetzel Design. Martin Wetzel Design will correct these defects within a reasonable time, and the client shall provide Martin Wetzel Design with all measures necessary for the investigation and correction of defects. Martin Wetzel Design may refuse to remedy the goods/services if it is impossible or disproportionately costly. In that case, the client has the statutory rights to cancellation or price reduction. In the event of remedy, the client must send back the defective (physical) item at its own expense.

12.3 The client is responsible for verifying the legal admissibility (particularly regarding competition, trademark, and administrative law) of the performance. Martin Wetzel Design is only obliged to perform a broad review of legal admissibility. Martin Wetzel Design is not liable in cases of slight negligence or after having fulfilled any duty of warning, if the content was provided or approved by the client.

12.4 The warranty period is six months from delivery/performance. The client has no right to withhold payments on grounds of any defects. The presumption rule of § 924 ABGB is excluded.

13. Liability and Product Liability

13.1 In cases of slight negligence, Martin Wetzel Design, its employees, commissioned parties, or any agents (“assistants”) shall not be liable for any property or financial damages of the client, whether these be direct or indirect, lost profits, or consequential harm from defects, damages due to delays, impossibility, breach of contract, fault in the conclusion of the contract, or due to deficient or incomplete performance. The burden of proof of gross negligence lies with the injured party. Where Martin Wetzel Design’s liability is excluded or limited, this also applies to the personal liability of its “assistants.”

13.2 Any liability on the part of Martin Wetzel Design for claims raised against the client based on the performance provided by Martin Wetzel Design (e.g. advertising measures) is expressly excluded if Martin Wetzel Design has fulfilled its duty to warn, or such was not evident to Martin Wetzel Design, with slight negligence causing no harm. In particular, Martin Wetzel Design is not liable for litigation costs, the client’s own attorney fees, or costs of judgment publication, nor for any damage claims or other claims by third parties. The client shall hold Martin Wetzel Design harmless and indemnify it in this respect.

13.3 The client’s claims for damages expire six months after the client becomes aware of the damage; in any event, they expire three years after Martin Wetzel Design’s alleged breach. Claims for damages are limited to the net contract value.

14. Governing Law

The contract and all derived reciprocal rights and obligations, as well as claims between Martin Wetzel Design and the client, shall be governed by Austrian substantive law, excluding its conflict-of-law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

15. Place of Performance and Jurisdiction

15.1 The place of performance is Martin Wetzel Design’s registered office. In case of dispatch, the risk passes to the client as soon as Martin Wetzel Design has handed over the goods to the chosen transport company.

15.2 The competent court at Martin Wetzel Design’s registered office shall have jurisdiction over all legal disputes arising between Martin Wetzel Design and the client in connection with this contractual relationship. Notwithstanding, Martin Wetzel Design is entitled to sue the client at the client’s general place of jurisdiction.

15.3 Insofar as these GTC use terms referring to natural persons only in the masculine form, they apply to all genders equally.

Supplementary Provisions

16. Online Contract Conclusions with Consumers (Distance Selling)

16.1 Should a contract with a consumer come into existence exclusively via distance communication (email, telephone, etc.), the provisions of the Austrian Distance and Off-Premises Contracts Act (FAGG) may apply.

16.2 Generally, the consumer has the right to withdraw from the contract within 14 days from the conclusion of the contract without giving any reason, provided that none of the exceptions under § 18 FAGG (e.g. custom-made services) applies.

16.3 Exception for Individually Tailored Services: If Martin Wetzel Design, at the consumer’s express request, begins performing a service tailored to the client’s individual needs before the expiration of the 14-day withdrawal period, the right to withdraw expires once performance has commenced or been provided.

16.4 To exercise the right of withdrawal, a written communication (email to office[at]martinwetzeldesign.com or letter) within 14 days is sufficient.

16.5 If the consumer validly declares withdrawal in time and none of the exceptions apply, Martin Wetzel Design shall refund payments already received within 14 days.

17. Online Dispute Resolution (Consumers Only)

17.1 Consumers may submit complaints to the EU’s Online Dispute Resolution Platform at: https://ec.europa.eu/consumers/odr.
17.2 Complaints can also be made directly to office[at]martinwetzeldesign.com.

18. Data Protection

18.1 Martin Wetzel Design processes personal data in compliance with applicable data protection laws (especially GDPR and the Austrian Data Protection Act).
18.2 Details regarding data processing and data subject rights are contained in Martin Wetzel Design’s Privacy Policy, accessible at https://martinwetzeldesign.at/datenschutzerklaerung.
18.3 By concluding the contract, the client confirms having acknowledged this Privacy Policy.

19. Force Majeure

19.1 Events of force majeure or other unforeseeable circumstances beyond the control of Martin Wetzel Design (e.g. natural disasters, governmental measures, strikes, pandemics, large-scale power outages) release Martin Wetzel Design from its obligation to perform for the duration of the event.

19.2 If such circumstances persist for more than two months, both parties are entitled to withdraw from the contract. In such cases, claims for damages are excluded.

20. Liability Limitation for Google Ads, SEO/Online Marketing Services

20.1 With respect to Google Ads, SEO, or other online marketing services, no guarantee is given for specific results (e.g. ranking positions or clicks). Search engines or platforms may change their algorithms and guidelines at any time.

20.2 Martin Wetzel Design is not liable for economic losses resulting from fluctuating rankings, clicks, or rejected ads, unless these result from gross negligence or willful misconduct.

21. Requirement of Written Form, Email

21.1 Side agreements, reservations, amendments, and supplements require written form (email is sufficient, unless expressly stated that a signed document is needed).

21.2 This also applies to changes to, or waivers of, the requirement of written form.

Confirmation
By signing the written offer or by expressly accepting via email, the client confirms that they have taken note of these GTC and accept them as the basis of the contractual relationship.