Address: Mariahilfer Straße 34, A-1070 Vienna
Company registration number: FN524406k
Commercial Court of registration: HG Wien
UID-No.: ATU 75006645
Sedat Büyükdemirci, Martin Dall, Maximilian Schwinghammer
MD-Holding GmbH, Sedat Büyükdemirci, Stefan Wagner, Maximilian Schwinghammer
Public Relations Consulting
Authority: Magistrate of the City of Vienna
GISA number: 34177327
Business owner: sonicboom GmbH.
Company register number: 524406k
Address: 1070, Vienna Mariahilferstraße 34, 3rd floor
Business wording: Public Relations Consultant
Managing Director (under trade law): Schwinghammer, Maximilian Hermann, MSc
Date of appointment: 16.09.2021
sonicboom has all necessary rights (exploitation and/or usage rights) to the contents of this website. Third parties are prohibited from using the contents of our website without our express consent.
Liability for links implemented on this website is only assumed within the framework of para 17 e-commerce act (ECG).
Wiesmüller & Gschwantner OG
Rafaela Bleier | www.flaticon.com
sonicboom gmbh | Last updated: September 1, 2021
TERMS AND CONDITIONS
Only the German version of the General terms and conditions – which can be found here – is authentic and applicable to the legal transactions between sonicboom and its customers.
ENGLISH TRANSLATION OF THE GENERAL TERMS AND CONDITIONS („GTC“) OF SONICBOOM GMBH („SONICBOOM“)
Mariahilfer Straße 34
Company registration number: FN524406k
Commercial Court of registration: HG Wien
UID-No.: ATU 75006645
These GTC are valid from 1.9.2021.
Sonicboom offers consulting services for public relations, communication and management tasks. The currently offered services can be found here: https://sonicboom.digital/de/services.
Sonicboom provides services exclusively to entrepreneurs and not to consumers within the meaning of para 1 Law on Consumer Protection (Konsumentenschutzgesetz).
GENERAL PRINCIPLES / SCOPE OF APPLICATION
All legal transactions between sonicboom and its customers shall be governed exclusively by these General Terms and Conditions. The version valid at the time of the conclusion of the contract is decisive. Sonicboom concludes contracts only on the basis of these GTC. The GTC also apply to all future contractual relationships, thus even if not expressly referred to in additional contracts.
Any general terms and conditions of the customers are not accepted by sonicboom, even if they are known to sonicboom, unless a deviating agreement has been made explicitly and in writing in the individual case. Sonicboom expressly objects to the validity of the customer’s General terms and condition. A further objection against possible General terms and conditions of the customers of sonicboom is not necessary.
Amendments to the GTC shall be notified to the customers and shall be deemed to be agreed if the customers do not object to the amended GTC in writing within 14 days. The significance of silence shall be expressly pointed out to the customers.
The offers of sonicboom are subject to change and non-binding.
SCOPE OF THE CONSULTING ASSIGNMENT / CUSTOMER’S DUTY TO COOPERATE
The scope of the specific order agreed upon between sonicboom and the respective customer shall be contractually agreed upon in each individual case and shall result from the offer documents (written offer, declaration of acceptance by customer). Subsequent changes to services that deviate from the offer documents must be agreed in written form.
Within the framework given by the customer, Sonicboom can fulfil the order at its discretion.
All services (in particular content for social media) provided by sonicboom must be reviewed by the customer and approved within three working days of receipt. If they are not released within this timeframe, they are considered approved by the customer.
Customers shall provide sonicboom with all information and documents necessary for the performance of sonicboom’s services. The customer must inform sonicboom about all circumstances that are relevant for the performance of the service. This also applies if these circumstances become known only during the execution of the order. If expenses are incurred due to the fact that work has to be repeated or delayed because of incorrect, incomplete or subsequently changed information provided by sonicboom, these expenses shall be borne by customer.
If documents (logos, photos, graphics, etc.) are provided by the customers for the execution of the order, the customers are obligated to check these documents for any copyrights, trademark rights or other rights of third parties and sonicboom guarantees that these documents are free of rights of third parties and can be used by sonicboom for the order. In case of slight negligence or after fulfilment of the warning obligations sonicboom shall not be liable to the customers for the violation of such third party rights by the documents provided by the customers. Customers shall indemnify sonicboom in the event that claims are asserted against sonicboom by a third party due to an infringement of rights. In this case, the customer shall compensate sonicboom for all disadvantages resulting from the claims of third parties, in particular the costs of appropriate legal representation. Customers agree to support sonicboom in the defense of any third party claims. The customer shall – without further notice – provide sonicboom with all documents required for this purpose.
EXTERNAL SERVICES / COMMISSIONING OF THIRD PARTIES
Sonicboom is entitled to let third parties perform the tasks with which it is entrusted in whole or in part (“Third Party Service”).
Sonicboom will commission third parties in the context of an external service either in its own name or in the name of the customer. The commissioning of third parties on behalf of the customer shall only take place after having informed the customer. Sonicboom selects the third parties carefully and ensures that they have the necessary professional qualifications.
The customers must enter into obligations to third parties that have been named to the customers and that extend beyond the term of the contract. This shall expressly also apply in the event of termination of the contract for good cause.
As far as the assignment of third parties is made in the name of the customers, the third parties are no agents (Erfüllungsgehilfe) of sonicboom.
The customer agrees to not commission any similar consulting services directly from the persons or companies that sonicboom uses to fulfil its contractual obligations for a period of three years after the termination of this contractual relationship.
Delivery and service deadlines specified by sonicboom are not binding, unless they have been expressly agreed to being binding.
If sonicboom’s delivery/service is delayed for reasons beyond sonicboom’s control, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment. The deadlines shall be extended accordingly. If such delays last more than two months, sonicboom and the customer are entitled to withdraw from the contract.
If sonicboom is in default, the customers may withdraw from the contract after they have granted sonicboom a reasonable grace period of 14 days in writing and this period has expired. The customers have no claims for damages due to non-performance or delay, except in case of evidence of intent or gross negligence.
SOCIAL MEDIA CHANNELS
CONCEPT AND IDEA PROTECTION
If potential customers have invited sonicboom to develop a concept and if sonicboom accepts this invitation before the conclusion of the main contract, the following provision shall apply:
Already by the invitation and the acceptance of the invitation by sonicboom, the potential customers and sonicboom enter into a contractual relationship (“Pitching Contract”). The pitching contract is based on these GTC.
The potential customers acknowledge that sonicboom already provides cost-intensive preliminary services with the concept development, although the potential customers themselves have not yet assumed any service obligations.
The concept is subject to the protection of the copyright law in its linguistic and graphic parts, as far as these reach the level of a work of art (Werkhöhe). The potential customers are not permitted to use and edit these parts without sonicboom’s consent, especially in light of copyright laws.
The concept may also contain ideas relevant to advertising that do not reach the level of a work of art and thus 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 later produced and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic imprint. In particular, strategies, texts, graphics and illustrations, advertising materials, etc. are considered as ideas in the sense of this agreement, even if they do not reach the level of a work of art.
Unless a main contract is concluded, the potential customers undertake to refrain from commercially exploiting or having commercially exploited or using or having used the creative advertising ideas presented by sonicboom within the framework of the concept.
If the potential customers are of the opinion that sonicboom has presented ideas that were already known to the potential customers prior to the presentation, they shall notify sonicboom by e-mail within 14 days after the day of the presentation, citing evidence that allows a temporal allocation.
If such an announcement is not made, sonicboom shall be deemed to have presented the potential customers with an idea that is new to them. If this idea is used by the potential customers, it is to be assumed that sonicboom was responsible for said idea.
The potential customers may release themselves from their obligations under this point by paying an appropriate compensation plus 20% VAT. The exemption shall not take effect until sonicboom has received payment of the compensation in full.
If sonicboom and the customers do not agree otherwise, sonicboom’s fee is due for each individual service as soon as it has been rendered. Sonicboom shall be entitled to demand advance payments to cover its expenses. Starting from an order volume with an (annual) budget of € 8,450 (net) or those extending over a longer period of time, sonicboom shall be entitled to issue interim or advance invoices or to call for advance payments.
The fee shall be understood as a net fee plus added tax at the legal rate. In the absence of an agreement in the individual case, sonicboom shall be entitled to a fee in the amount customary in the market for the services rendered and the transfer of the rights of use under copyright and trademark law.
All services of sonicboom, which are not expressly covered by the agreed fee, shall be remunerated separately. All cash expenses incurred by sonicboom in connection with the performance of the contract shall be reimbursed by the customer.
Cost estimates by sonicboom are non-binding. Cost overruns shall be deemed to have been approved by the customer if the latter does not object in writing within three working days of notification and at the same time informs sonicboom of more cost-effective alternatives. In the case of cost overruns of up to 15%, a separate notification is not required. This cost estimate overrun shall be considered approved by the customer.
If the customers unilaterally change or discontinue work commissioned without sonicboom’s involvement – regardless of other ongoing support by sonicboom – they shall compensate sonicboom for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of sonicboom, the customers shall furthermore reimburse sonicboom for the entire fee agreed upon for this order, whereby the credit compensation of Sec 1168 Austrian Civil Code (ABGB) is excluded. The customer shall indemnify sonicboom from and against any and all claims of third parties arising from the termination of the order, in particular from sonicboom’s contractors. This shall not apply if the termination of the order is due to gross negligence or intentional breach of duty by sonicboom.
With the payment of the fee, customers do not acquire any rights of use regarding work already performed; concepts, drafts and other documents that have not been executed are to be returned to sonicboom immediately.
PAYMENT, RETENTION OF OWNERSHIP
The fee is immediately due for payment upon receipt of the invoice and without deduction, unless special payment terms have been agreed upon in writing. This also applies to the charging of all cash expenses and other expenditures. The goods delivered by sonicboom shall remain the property of sonicboom until full payment of the fee, including all ancillary liabilities.
In the event of default of payment by the customer, the statutory interest on arrears shall apply at the rate applicable to business transactions. In the event of late payment, the customer agrees to reimburse sonicboom for any reminder and collection fees incurred, to the extent necessary for appropriate legal action. This includes in any case a lump sum of € 40 as compensation for collection costs according to Sec 458 Commercial Act (UGB). The assertion of further rights and claims shall remain unaffected.
In the event of default of payment by the customer, sonicboom may demand immediate payment for all services and partial services rendered under other contracts concluded with the customer. Furthermore, sonicboom is not obligated to provide further services until the outstanding amount is paid (right of retention). The obligation to pay the fee remains unaffected.
If payment in instalments has been agreed upon, sonicboom reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (immediate maturity – Terminsverlust).
Customers are not entitled to set off their own claims against claims of sonicboom unless the customer’s claim has been acknowledged in writing by sonicboom or has been established by a court of law.
PROPERTY RIGHT AND COPYRIGHT
All services of sonicboom, including those from presentations (e.g. suggestions, ideas, concepts, (preliminary) drafts, etc.) including individual parts thereof, as well as the individual workpieces and design originals shall remain the property of sonicboom and may be reclaimed by sonicboom at any time – in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. Unless otherwise agreed, customers may use the services exclusively in Austria. The acquisition of rights of use and exploitation of services of sonicboom requires in any case the full payment of the fees charged by sonicboom. If the customer uses the services of sonicboom before payment, this use is considered as loan that can be revoked at any time.
Modifications or adaptations of sonicboom’s services, in particularly their further development by the customer or by third parties acting on the customer’s behalf, are only permitted with the express consent of sonicboom and – insofar as the services are protected by copyright – of the copyright holder. The release of all so-called “Open files” is expressly not part of the contract. Sonicboom is not obligated to release such files.
For the use of services of sonicboom, which exceeds the originally agreed purpose and scope of use, the consent of sonicboom is required – regardless of whether this service is protected by copyright. For this purpose, sonicboom and the authors shall be entitled to a separate adequate remuneration.
For the use of services provided by sonicboom or of advertising material and/or texts for which sonicboom has developed conceptual or design templates, sonicboom’s consent shall also be required after expiration of the contract, regardless of whether such service is protected by copyright or not. For these uses sonicboom is entitled to the following fee after expiration of the contract:
- in the 1st year after the end of the contract: Entitlement to 100% of the fee agreed upon in the past year;
- in the 2nd year after the end of the contract: 50% of the fee agreed upon in the past year;
- in the 3rd year after the end of the contract: 25% of the fee agreed in the previous year;
- from the 4th year after the end of the contract onwards, no further payment shall be due.
The customer is liable to sonicboom for any illegal use in the double amount of the appropriate fee for this use.
Sonicboom is entitled to refer to sonicboom and, if applicable, to the author in all commissioned services (in particular texts, any advertising material, etc.). The customer is not entitled to any payment for this.
Sonicboom is entitled to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its website with name and company logo (reference). Customers may revoke their consent to this in writing at any time.
Customers shall notify sonicboom of any defects in written form without delay, in any case within eight days after delivery/service by sonicboom, hidden defects within eight days after detection of the same, describing the defect; otherwise, the service shall be deemed approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects is excluded.
In case of justified and timely notice of defects, the customer shall be entitled to improvement or replacement of the delivery/service by sonicboom. Sonicboom shall remedy the defects within a reasonable period of time, whereby the customer shall allow sonicboom to take all measures necessary to examine and remedy the defects. Sonicboom shall be entitled to refuse to improve the performance if such improvement is impossible or involves a disproportionately high effort for sonicboom. In this case, the customer is entitled to the statutory rights of conversion or reduction. In the case of improvement, it is the responsibility of the customer to transfer the defective (physical) item at their expense.
It is also the responsibility of the customer to check the service for legal admissibility, particularly under competition, trademark, copyright and administrative law. Sonicboom is only obligated to a rough check of the legal admissibility. Sonicboom is not liable for the legal admissibility of content in case of slight negligence or after fulfilment of a possible duty to warn the customer if the content was specified or approved by the customer.
The warranty period is six months from delivery/service. The right of recourse against sonicboom according to sec 933b Abs 1 Civil Code (AGBG) expires one year after delivery/service. Customers are not entitled to withhold payments due to complaints. The presumption of sec 924 Civil Code (AGBG) is excluded.
LIABILITY AND PRODUCT LIABILITY
In cases of slight negligence, liability of sonicboom and its employees, further contractors or other vicarious agents for property damage or financial loss of the customers is excluded. This applies regardless of whether the damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. As far as sonicboom’s liability is excluded or limited, this shall also apply to the personal liability of its employees, further contractors and other agents (Erfüllungsgehilfe).
Sonicboom shall not be liable for claims made against the customer based on the service provided by sonicboom (e.g. Social Media Content), if sonicboom has fulfilled its obligation to inform the customer or if such obligation was not recognizable to sonicboom, whereby slight negligence shall not be detrimental. Sonicboom hall in particular not be liable for legal costs, the customer’s own attorney’s fees or the costs of publishing judgments or for any claims for damages or other claims of third parties. Customers shall indemnify and hold sonicboom harmless in this respect.
Claims for damages of the customers expire six months after knowledge of the damage, but in any case after three years after the infringement by sonicboom. Claims for damages are limited to the net order value.
Sonicboom is entitled to send invoices to customers also in electronic form.
DURATION OF THE CONTRACT
Unless otherwise agreed, the contracts concluded between the customer and sonicboom shall end upon completion of the project.
Sonicboom is entitled to terminate the contract for cause with immediate effect. Reasons to terminate for cause are in particular if
- 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 being set;
- the customer continues to violate material obligations under this contract, such as payment of a due amount or duties to cooperate, despite a written warning with a deadline of 14 days;
- there are justified doubts regarding the creditworthiness of the customer and the customer does not make any advance payments or provide any security prior to the performance of sonicboom upon request of sonicboom;
Customers are entitled to terminate the contract for cause without notice. Cause shall be deemed to exist, in particular, if sonicboom continues to violate material provisions of the contract and fails to remedy the violation despite a written warning with a reasonable grace period of at least 14 days.
PLACE OF PERFORMANCE / PLACE OF JURISDICTION / CHOICE OF LAW / CONTRACTUAL LANGUAGE
Place of performance is the registered office of sonicboom. In case of shipment, the risk shall pass to the customer as soon as sonicboom has handed over the goods to the carrier chosen by sonicboom.
For the resolution of all disputes arising from the contracts concluded between sonicboom and the customers – including disputes about the existence or non-existence of a contract – the exclusive jurisdiction of the competent court for Vienna is agreed.
Austrian law shall apply exclusively, excluding the reference norms of international private law (e.g. Act on International Private law (IPRG), Brussels I regulation, etc) and excluding the UN Convention on Contracts for the International Sale of Goods.
The contractual language is German.
Amendments or supplements to a contract must be made in writing. This shall also apply to any amendment of the written form requirement.
In the event, that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and economic purpose.
The headings of these GTC are for convenience only and shall not be used for the interpretation of the GTC.
The assignment of individual rights and obligations arising from the contract concluded between sonicboom and the customers, including these GTC, is only permitted with the express written consent of the other contracting party.