1. Applicability
1.1 Flare Talents Agency e.U. - hereinafter referred to as the Agency - provides its services exclusively on the basis of these General Terms and Conditions. These terms also apply to all future business relationships, even if not expressly referred to. Service providers engaged by the Agency for various client assignments - hereinafter referred to as Talents - are bound by the Agency's General Terms and Conditions.
1.2 Supplementary agreements, reservations, amendments, or additions to these General Terms and Conditions require written form to be valid; this also applies to deviating from the written form requirement.
1.3. Contrary or divergent terms and conditions of the contracting party shall only become effective if expressly and in writing acknowledged by the Agency, even if the Agency has knowledge of them.
1.4. Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions and contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes closest to its meaning and purpose.
2. Social Media Channels
Before placing an order, the Agency expressly informs the client that the providers of "social media channels" (e.g., Facebook, Instagram, or Google+ - hereinafter referred to as Providers) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Therefore, the Providers are not obliged to forward content and information to users. Consequently, there is an unforeseeable risk, not calculable by the Agency, that advertisements and appearances may be removed without cause. In the event of a complaint from another user, the Providers do offer the possibility of a counterstatement, but in such cases, the content is immediately removed as well. Regaining the original lawful state may take some time in this case. The Agency operates on the basis of these terms of use of the Providers, over which it has no influence, and also bases the client's order on them. With the placement of an order, the client expressly acknowledges that these terms of use determine the rights and obligations of any potential contractual relationship. The Agency intends to execute the client's order to the best of its knowledge and belief and to comply with the guidelines of social media channels. However, due to the currently valid terms of use and the ease with which any user can claim violations of rights to achieve removal of content, the Agency cannot guarantee that the commissioned campaign will be accessible at all times.
3. Conclusion of Contract
3.1. The basis for the conclusion of the contract is the respective offer of the Agency or the order of the client, in which the scope of services and the remuneration are specified. The offers of the Agency are non-binding and subject to change.
3.2. If the client places an order, they are bound to it for two weeks from its receipt by the Agency. The contract is concluded by the acceptance of the order by the Agency. Acceptance shall be in writing (e.g., by order confirmation), unless the Agency unmistakably indicates (e.g., by acting on the order) that it accepts the order.
4. Scope of Services, Order Processing and Customer's Obligations to Cooperate
4.1. The scope of services to be provided is determined by the client's order or the service description or the specifications in the contract. Subsequent changes to the scope of services require written form.
4.2. All services provided by the Agency (especially all preliminary drafts, sketches, final artwork, brush proofs, blueprints, and color prints) must be reviewed by the customer and approved within three days. If approval is not given in a timely manner, they shall be deemed approved by the customer.
4.2.1. For bookings of performing talents (such as models, actors, promoters, etc.), the following guidelines apply: Special conditions apply for underwear shots in bras, panties, slips, with stockings & garter belts, in boxer shorts, negligees, and transparent or translucent items, as well as shots with otherwise revealing character. These special conditions must be clarified in writing. This must be communicated before booking, and the Agency must consult with the Talent. For advertising jobs, prior consultation with the Agency is necessary to avoid conflicts.
4.3. Errors in the manuscript or the client's documents will be corrected to the best of abilities, but the Agency assumes no liability for them. Proof prints must be checked by the client and returned with the note of approval. After the expiration of a deadline set by the Agency, the proof print is automatically considered approved. Changes requested orally and/or by telephone must be repeated in writing. The Agency is not responsible for any defects resulting from a delivery time demanded by the client that is too short.
4.4. The customer shall promptly provide the Agency with all information and documents necessary for the provision of the service. The customer shall inform the Agency of all matters relevant to the execution of the order, even if these circumstances only become known during the execution of the order. The customer shall bear the costs incurred if work has to be repeated or delayed due to incorrect, incomplete, or subsequently changed information provided by the customer.
4.5. Furthermore, the customer is obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any existing copyright, trademark rights, or other rights of third parties. The Agency shall not be liable for any infringement of such rights. If the Agency is held liable for such an infringement, the customer shall indemnify and hold the Agency harmless; the customer shall reimburse the Agency for any disadvantages incurred by a third-party claim.
5. Outsourced Services | Commissioning of Third Parties
5.1. The Agency is entitled, at its discretion, to provide the service itself, to use third parties to provide contractual services, and/or to substitute such services ("authorized representative").
5.2. The commissioning of representatives shall be either in the Agency's own name or in the name of the client, but in any case, at the client's expense. The general terms and conditions of the appointed suppliers always apply – even if the handling fees are to be invoiced to the client via the Agency. The full invoice amount must be paid promptly, and a reduction of the invoice amount is only permissible once a credit note from the supplier has been received by us; if the requested amount has already been transferred, we will refund the difference.
5.3. The Agency will carefully select authorized representatives and ensure that they have the necessary professional qualifications.
6. Deadlines
6.1. Deadline and appointment agreements must be documented or confirmed in writing. The Agency endeavors to adhere to the agreed deadlines. However, the client is only entitled to assert their legally entitled rights for non-compliance with deadlines if the Agency has been granted a reasonable grace period of at least 14 days. This period begins with the receipt of a reminder letter by the Agency.
6.2. If the grace period expires without result, the client may withdraw from the contract. However, there is an obligation to pay damages for delay only in cases of intent or gross negligence on the part of the Agency.
6.3. Unavoidable or unforeseeable events – especially delays with subcontractors of the Agency – release the Agency from adhering to the agreed delivery deadline. The same applies if the client is in default with their obligations necessary for the execution of the order (e.g., provision of documents or information). In this case, the agreed deadline will be postponed at least to the extent of the delay.
7. Termination of Contract and Cancellation
7.1. The Agency is entitled to withdraw from the contract, in particular, if – the execution of the service becomes impossible due to reasons attributable to the client or is further delayed despite setting a grace period; – there are legitimate concerns regarding the creditworthiness of the client, and the client neither makes advance payments upon request by the Agency nor provides suitable security before the performance of the Agency.
7.2. In case of cancellation (by the client) of a confirmed booking within 5 working days before the agreed performance date, 50%, within 3 working days before the agreed performance date, 100% of the agreed fee plus any incurred fulfillment costs, expenses, and VAT will be charged. A cancellation must be submitted in writing by 4:00 PM, otherwise, the cancellation will be effective on the following day.
Options must be confirmed or canceled as soon as a 2nd option becomes available.
8. Fees
8.1. Unless otherwise agreed, the Agency's fee for each individual service arises once it has been provided. The Agency is entitled to request advances to cover its expenses.
8.2. The Agency shall receive a fee for the services rendered and for the compensation of copyright and trademark usage rights, in the absence of any divergent agreement. The fee is exclusive of statutory value-added tax.
8.3. All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the client.
8.4. Cost estimates provided by the Agency are generally non-binding. If it becomes apparent that the actual costs will exceed those estimated by the Agency in writing by more than 20%, the Agency will notify the client of the higher costs. The cost overrun shall be deemed approved by the client if the client does not object in writing within three days of this notification and simultaneously provides less costly alternatives.
8.5. For all work of the Agency that, for whatever reason, is not carried out by the client, the Agency shall be entitled to reasonable compensation. By paying this compensation, the client does not acquire any rights to this work; rather, unexecuted concepts, designs, and other documents must be promptly returned to the Agency.
9. Payment
9.1. The invoices of the Agency are due for payment in full, without deduction, from the date of the invoice and must be paid within ten calendar days of receipt of the invoice, unless otherwise agreed. In case of late payment, default interest shall be deemed agreed. Delivered goods remain the property of the Agency until full payment has been received.
9.2. The fee to be paid by the client to the Agency consists of: a) the agreed working fee of the talent; b) the publication and exploitation fee; c) the agreed agency commission (24%, unless otherwise agreed), plus statutory value-added tax. Any expenses shall be borne by the client.
9.3. In the event of payment default by the client, the following shall apply: From 7 days overdue, a payment reminder (first reminder, without fees) will be sent to the client by post. From 14 days overdue, the second reminder will be sent by post (€10 reminder fee).
From 21 days overdue, the third reminder will be sent by post (registered mail) (€50 reminder fee).
9.4. The client undertakes to bear all costs and expenses associated with the collection of the debt, such as collection fees or other costs necessary for appropriate legal action.
9.5. In the event of the client's payment default, the Agency may declare all services and partial services provided under other contracts concluded with the client immediately due and payable.
9.6. The client is not entitled to set off their own claims against claims of the Agency, unless the client's claim has been acknowledged in writing by the Agency or has been legally established.
A right of retention by the client is excluded.
10. Presentations
10.1. The Agency is entitled to a reasonable fee for participating in presentations, which, in the absence of an agreement, covers at least the total personnel and material expenses of the Agency for the presentation as well as the costs of all outsourced services.
10.2. If the Agency does not receive an order after the presentation, all services of the Agency, in particular the presentation materials and their content, remain the property of the Agency; the client is not entitled to further use them in any form; instead, the documents must be promptly returned to the Agency. The passing on of presentation materials to third parties as well as their publication, reproduction, distribution, or any other exploitation is not permitted without the express consent of the Agency.
10.3. Likewise, the client is prohibited from further using the ideas and concepts introduced during the presentation, regardless of whether the ideas and concepts obtain copyright protection. By paying the presentation fee, the client does not acquire any exploitation and usage rights to the presented services.
10.4. If the ideas and concepts introduced during a presentation are not utilized in advertising materials designed by the Agency for the solution of communication tasks, the Agency is entitled to use the presented ideas and concepts elsewhere.
11. Property Rights and Copyrigth Protection
11.1. All services provided by the Agency, including those from presentations (e.g., suggestions, ideas, sketches, preliminary designs, scribbles, final artwork, concepts, negatives, slides), as well as individual parts thereof, remain the property of the Agency, along with the individual workpieces and original designs, and can be reclaimed by the Agency at any time. By paying the fee, the client only acquires the right to use (including reproduction) for the agreed purpose and within the agreed scope. Without a contrary agreement with the Agency, the client may only use the Agency's services for their domestic market for a period of 5 years. The acquisition of usage and exploitation rights for services of the Agency always requires the full payment of the fees invoiced by the Agency for them.
11.2. Changes to the Agency's services, especially their further development by the client or by third parties acting on their behalf, are only permissible with the express consent of the Agency and upon payment of the fee for a total buyout as per the offer and – to the extent that the services are protected by copyright – of the author.
11.3. For the use of the Agency's services beyond the originally agreed purpose, scope, and duration, the consent of the Agency is required, regardless of whether the service is protected by copyright. The Agency and the author are entitled to a separate reasonable remuneration for this. This amounts to 50% of the original offer amount, unless otherwise agreed, if the duration of use exceeds 5 years, and automatically extends for another 5 years (except for photography, see point 11.4).
11.4. If the Agency's service also includes the creation of photography, it should be noted that Flare Talents e.U. can only transfer rights to the design of the photograph to the client, not the rights to the photographed individuals or objects – these must be separately negotiated and considered. The usage rights to the photo design are limited to 3 years. In case of an extension, a fee of 50% of the editing price per image is payable to the Agency, granting usage for another 4 years.
11.5. For the use of the Agency's services or advertising materials for which the Agency has developed conceptual or design templates, the consent of the Agency is also required after the expiration of the agency contract, regardless of whether the service is protected by copyright or not.
11.6. By confirming the terms and conditions, the artists declare that they have the rights to the presented works, and they authorize Flare Talents to use them for self-promotion and publication on the website and various social media platforms.
12. Labeling
12.1. The Agency is entitled to indicate the Agency and, if applicable, the author on all advertising materials and in all advertising measures, without the client being entitled to any remuneration for this.
12.2. Subject to the client's possible written revocation at any time, the Agency is entitled to indicate the existing business relationship with the client by name and company logo on its own advertising media and especially on the website.
13. Warranty and Compensation
13.1. The customer must promptly, but in any case within three days after the performance by the Agency, assert and justify any complaints in writing. In the case of justified and timely complaints, the customer is entitled only to rectification or replacement of the service by the Agency. Minor color deviations in prints from the result in the final print run are not recognized as complaints.
13.2. If a complaint is justified, the defects will be rectified within a reasonable period, provided that the customer enables the Agency to carry out all necessary measures for inspection and rectification of the defects. The Agency is entitled to refuse to rectify the service if it is impossible or associated with disproportionately high costs for the Agency.
13.3. Reversal of the burden of proof pursuant to § 924 ABGB in favor of the Agency is excluded. The customer must prove the existence of the defect at the time of handover, the time of discovering the defect, and the timeliness of the complaint.
13.4. Claims for damages by the customer, especially due to delay, impossibility of performance, breach of positive contract obligations, fault at the time of contract conclusion, defective or incomplete performance, consequential damages due to defects, or unlawful acts, are excluded unless they are based on intent or gross negligence of the Agency. Lost profit or contribution margin cannot be claimed.
13.5. Each claim for damages can only be asserted within six months from the knowledge of the damage.
13.6. Claims for damages are limited in amount to the value of the order excluding taxes.
14. Liability
14.1. The Agency will carry out the assigned work in accordance with generally accepted legal principles and will timely alert the customer to risks that are recognizable to them. Any liability of the Agency for claims arising from the advertising measure (the use of a label) against the customer is expressly excluded if the Agency has fulfilled its duty to inform; in particular, the Agency is not liable for legal costs, the customer's own legal costs, or costs of judgment publications, as well as any claims for damages or similar claims by third parties.
14.2. The Agency is liable within the framework of the legal provisions only for damages if intent or gross negligence can be proven. Liability for slight negligence is excluded. The injured party must prove the existence of gross negligence.
15. Applicable Law
The legal relationships between the customer and the Agency are governed exclusively by Austrian law, excluding the rules of international reference. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) do not apply.
16. Data Protection
The customer and the talents agree that personal data, such as: name/company, profession, date of birth, commercial register number, powers of representation, contact person, business address, and other addresses of the customer or the talents, telephone number, fax number, email address, bank details, credit card information, VAT identification numbers, may be collected, stored, transmitted, and processed automatically and manually for the purpose of contract fulfillment and support, as well as for own advertising purposes, such as sending offers, advertising brochures, and newsletters (in paper and electronic form), and for the purpose of indicating the existing or former business relationship with the customer (reference notice).
The customer and the talents agree to receive electronic mail for advertising purposes until revoked.
This consent can be revoked at any time in writing via email, fax, or letter to the contact details provided at the beginning of the terms and conditions.
17. Place of Performance and Jurisdiction
17.1. The place of performance is the registered office of the Agency.
17.2. Where in this contract designations referring to natural persons are only given in the masculine form, they refer equally to women and men. When applying the designation to specific natural persons, the respective gender-specific form is to be used.
17.3. The competent Austrian court located at the registered office of the Agency shall have jurisdiction over all disputes directly arising between the Agency and the customer. These General Terms and Conditions in this version shall apply from January 1, 2018.
