GTC

Below you will find the general terms and conditions of 7BOTANICALS PTE. LTD..

1 PREAMBLE – SCOPE OF APPLICATION

1.1 7BOTANICALS PTE. LTD. (hereinafter referred to as the “Agency”) is an advertising agency and service provider specializing in digital branding. The Agency provides its services exclusively on the basis of the following General Terms and Conditions (“GTC”) to business customers (“Clients”). These GTC apply exclusively to business-to-business transactions, i.e. legal transactions concluded by the Agency with entrepreneurs within the meaning of Section 1 (1) no. 1 of the Austrian Consumer Protection Act (KSchG). The GTC apply to all present and future legal relationships between the Agency and the Client, even if no explicit reference is made to them in individual cases.

1.2 The version of the GTC valid at the time of conclusion of the contract shall apply in each case. Deviations from these GTC and any supplementary agreements with the Client shall only be valid if confirmed in writing by the Agency.

1.3 Any terms and conditions of the Client shall not be accepted and shall not form part of the contractual relationship with the Agency, even if known to the Agency, unless expressly agreed otherwise in writing on a case-by-case basis. The Agency hereby expressly objects to any terms and conditions of the Client. No further objection by the Agency is required.

2 CONCLUSION AND AMENDMENT OF CONTRACTS

2.1 The Agency shall be bound by its offers for a period of fourteen (14) days from the date the offer is submitted to the Client, unless otherwise stated in the offer. A contract shall be concluded upon the Client’s written acceptance of the offer, provided that such acceptance is received by the Agency within the binding period. Inquiries or offers submitted by the Client shall be accepted by the Agency by means of a written order confirmation.

2.2 Offers by the Agency to amend these GTC shall be communicated to the Client at the address last provided by the Client. Amendments to the GTC shall become effective if the Client does not object in writing within thirty (30) days of receipt. The Agency undertakes to expressly inform the Client in writing, when submitting the amendment proposal, of the thirty (30) day objection period and of the legal consequences of the Client’s conduct.

2.3 Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions or the contracts concluded on the basis thereof. Any invalid or unenforceable provision shall be replaced by a valid provision that comes closest to the economic intent of the invalid provision.

3 SCOPE OF SERVICES, ORDER EXECUTION AND CLIENT’S COOPERATION OBLIGATIONS

3.1 The scope of services to be provided by the contracting parties shall result from the service description set out in the agency agreement, which is generally based on the Agency’s offer accepted in writing by the Client or on the Agency’s written order confirmation countersigned by the Client. Any subsequent changes to the scope or content of services shall require the Agency’s written confirmation. Within the framework specified by the Client, the Agency shall retain creative and design discretion in the execution of the assignment.

3.2 All services provided by the Agency (in particular all designs, drafts, sketches, final artwork, copies and electronic files) shall be reviewed by the Client and approved within three (3) business days of receipt by the Client. If no feedback is provided within this period, the services shall be deemed approved by the Client.

3.3 The Client shall provide the Agency, in a timely manner and in full, with all information and documents required for the performance of the services. The Client shall inform the Agency of all circumstances relevant to the execution of the assignment, even if such circumstances become known only during the course of the project. The Client shall bear any additional effort, costs or delays arising from incorrect, incomplete or subsequently modified information provided by the Client, insofar as this necessitates repetition or delays in the Agency’s work.

3.4 The Client further undertakes to review all materials provided by the Client for the execution of the assignment (such as graphics, logos, photographs, etc.) with regard to any copyrights, trademark rights, related rights or other third-party rights (rights clearance) and warrants that such materials are free of third-party rights and may therefore be used for the intended purpose. In cases of slight negligence or after having fulfilled its duty to warn, the Agency shall not be liable—at least in the internal relationship with the Client—for any infringement of third-party rights arising from materials provided by the Client. If the Agency is held liable by a third party due to such an infringement, the Client shall fully indemnify and hold the Agency harmless and shall compensate the Agency for all disadvantages incurred as a result, including in particular the costs of reasonable legal representation. The Client undertakes to support the Agency in the defense against any third-party claims and shall provide the Agency, without request, with all relevant documentation required for this purpose.

4 THIRD-PARTY SERVICES / ENGAGEMENT OF THIRD PARTIES

4.1 The Agency shall be entitled to perform the services either itself or, in the provision of the contractual services, to engage competent third parties as vicarious agents and/or to substitute such services (“Third-Party Services”).

4.2 The Agency shall be entitled to engage third parties in the context of Third-Party Services either in its own name or in the name and on behalf of the Client. The Agency shall carefully select such third parties and ensure that they possess the required professional qualifications.

4.3 To the extent that the Agency commissions necessary or agreed Third-Party Services, the respective contractors shall not be deemed vicarious agents of the Agency.

4.4 The Client shall assume any obligations of the Agency towards third parties that extend beyond the term of the contract, to which the Client hereby already gives its consent. This shall apply in particular in the event of termination of the agency agreement for cause.

5 DEADLINES

5.1 Any stated delivery or performance deadlines shall, unless expressly agreed as binding, be deemed approximate and non-binding only. Binding deadlines must be agreed in writing or confirmed in writing by the Agency.

5.2 The Agency’s performance obligations shall be suspended to the extent that the Agency is prevented from performing due to force majeure or other circumstances beyond its control. Operational disruptions, transport disruptions, and improper or delayed deliveries by third parties shall also be deemed force majeure. If such circumstances render performance by the Agency impossible, the Agency shall be released from its delivery and performance obligations. If the aforementioned circumstances result in a suspension of performance obligations for a period exceeding two months, both the Client and the Agency shall be entitled to withdraw from the contract in writing.

5.3 In the event that the Agency is in default, the Client may withdraw from the contract only after having granted the Agency a reasonable grace period of at least four weeks in writing and such grace period has expired without result. Any claims for damages by the Client due to non-performance or delay shall be excluded, except in cases of proven intent or gross negligence.

6 EARLY TERMINATION

6.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause, irrespective of whether the contract constitutes a contract for work and services or a continuing obligation. Good cause shall exist in particular in the following cases:

a) any material breach of contract or repeated minor breaches by the Client, in particular persistent default in payment of at least one payment despite a grace period of 14 days having been granted, or a breach of the Client’s cooperation obligations;

b) if the performance of the services becomes impossible for reasons attributable to the Client, or if performance continues to be delayed despite the granting of a grace period of 14 days;

c) any amendment to applicable laws or regulations that has a material impact on the Agency’s obligations under this agreement or results in a substantial change of such obligations;

d) justified concerns of the Agency regarding the Client’s creditworthiness, provided that the Client, upon request by the Agency, neither makes advance payments nor provides suitable security prior to the performance of the Agency’s services;

e) a material deterioration of the Client’s financial situation, in particular in the event of moratorium agreements, declarations of suspension of payments, rejection of an application for the opening of insolvency proceedings due to lack of cost-covering assets, submission of an asset statement pursuant to Section 47 of the Austrian Enforcement Act (EO), out-of-court settlement, insolvency, or over-indebtedness (except for a period of six months following the opening of insolvency proceedings, provided that termination of the contract would jeopardize the continuation of the business and no good cause for termination exists on the part of the Agency).

6.2 In the event of early termination of the contract by the Agency for reasons attributable to the Client, the Client shall be obliged to pay the Agency the full remuneration owed under the contract, including remuneration due for future periods. This shall include, in particular, remuneration for services already rendered by the Agency up to the effective date of termination in accordance with this agreement, as well as any costs and expenses incurred by the Agency in connection with the termination.

7 FEES / INSTALLMENT PAYMENTS / COST ESTIMATES

7.1 The amount of the Agency’s fees shall be determined by the type and scope of the agreed services and shall be specified in the agency agreement, which is generally set out in the Agency’s offer accepted in writing by the Client or in the Agency’s written order confirmation countersigned by the Client.

7.2 Unless otherwise agreed, the Client shall pay the agreed fee in four installment payments (see Clause 7.3), the due dates of which shall be independent of the progress of the project. Accordingly, the payments shall in particular also become due if the progress of the project is delayed for any reason compared to the original plan, or if the project is terminated or prevented by the Client, provided that such delay, termination, or prevention is not caused by a grossly culpable breach of duty (gross negligence or intent) on the part of the Agency. The crediting remuneration pursuant to Section 1168 of the Austrian Civil Code (ABGB) is excluded. If, however, the termination of the work is caused by a grossly culpable breach of duty on the part of the Agency, the Client shall remunerate the services rendered by the Agency up to the time of termination on a pro rata basis in accordance with the agreed fees and shall reimburse the Agency for all costs and cash expenses incurred.

7.3 Unless otherwise stipulated in the agency agreement, the first installment in the amount of 50% of the agreed total fee shall become due for payment upon commencement of the engagement as specified in the agency agreement. The remaining three installments shall each become due monthly in arrears, such that the second installment in the amount of 20% of the total fee shall become due one month after the commencement date specified in the agency agreement, the third installment in the amount of 15% of the total fee shall become due two months after the commencement date, and the fourth and final installment in the amount of 15% of the total fee shall become due three months after the commencement date.

7.4 Unless explicitly stated otherwise, the stated prices and the agreed fees do not include value-added tax (VAT), which shall be borne by the Client in addition. Unless otherwise agreed, the Agency shall be entitled to reasonable remuneration at the customary market rate for the services rendered and for the granting of copyright and trademark usage rights.

7.5 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 in connection with the performance of the services shall be reimbursed by the Client and shall be invoiced separately by the Agency.

7.6 Ongoing support services (retainers) shall, unless otherwise agreed, be concluded for a minimum contractual term of twelve (12) months and shall automatically be extended by a further twelve (12) months unless the support services are terminated in writing during the eleventh (11th) month. In the case of maintenance packages, the start date shall be the month following the final installment invoice (see Clause 7.3).

8 PAYMENT TERMS / RETENTION OF TITLE / ACCELERATION / SET-OFF

8.1 Unless otherwise expressly agreed in writing in individual cases, the Agency’s fees shall be due for payment immediately upon receipt of the invoice and without any deduction. This shall also apply to the re-invoicing of all cash expenses and other costs. Until full payment of the remuneration, including all ancillary claims, the Client shall not be entitled to use the products developed by the Agency for the Client or to present them publicly; ownership and all (intellectual) property rights thereto shall remain with the Agency until full payment has been made by the Client.

8.2 In the event of default in payment by the Client, the Agency shall be entitled, irrespective of any fault on the part of the Client, to charge default interest at a rate of 9.2% above the base interest rate pursuant to Section 456 of the Austrian Commercial Code (UGB). Furthermore, in the event of default, the Client shall reimburse the Agency for all reminder and collection costs incurred, insofar as such costs are necessary for appropriate legal enforcement. This shall in any case include the costs of two reminder letters at the customary market rate, currently at least EUR 20.00 per reminder, as well as the costs of a reminder letter issued by a lawyer engaged for debt collection. The assertion of further rights and claims shall remain unaffected.

8.3 In the event that the Client is in default with at least one installment payment, any other payment obligation, or any other obligation under this agreement, the Agency shall be entitled, after granting a grace period of fourteen (14) days and threatening acceleration, to demand immediate payment of the entire outstanding debt of the Client (including future installment payments) arising from this agreement as well as from other agreements concluded with the Client (acceleration), without this constituting a termination of the agreement. Furthermore, in such case, the Agency shall not be obliged to render any further services until the outstanding amount has been settled (right of retention), without this affecting the Client’s obligation to pay the agreed remuneration. The Agency shall be entitled to terminate the agreement in accordance with Clause 6 in such case.

8.4 The Client irrevocably and unconditionally waives the right to set off its obligations against the Agency.

8.5 The Agency shall be entitled to set off all claims of the Client, insofar as such claims are subject to attachment, against all obligations of the Client towards the Agency.

9 OWNERSHIP AND COPYRIGHT

9.1 All services rendered by the Agency, including those presented in presentations (e.g. designs, concepts, sketches, drafts, final artwork, as well as ideas and suggestions), including individual parts thereof, as well as the individual work products and original drafts, shall remain the property and/or intellectual property of the Agency. The Agency shall be entitled at any time – in particular upon termination of the contractual relationship – to demand the return of such materials or to require their deletion by the Client, including proof of such deletion.

9.2 Upon full payment of the agreed remuneration, the Client shall acquire the right to use the products developed by the Agency (logos, branding, websites, etc.) for the agreed purpose. Any use beyond the agreed purpose, any reproduction of the products, or any modification or further development by the Client (or by third parties engaged by the Client) shall require the prior written consent of the Agency and – insofar as the services are protected by copyright – the author. Any such use or modification without consent shall be unlawful.

9.3 Unless otherwise expressly agreed, the Client shall be entitled to use the Agency’s products and services exclusively in Austria. The acquisition of any rights of use or exploitation of the Agency’s services shall in any case be subject to full payment of all remuneration owed to the Agency. If the Client lawfully uses the Agency’s services prior to such full payment, such use shall be based on a loan relationship which may be revoked by the Agency at any time.

9.4 Any use of the Agency’s services exceeding the originally agreed purpose and scope of use shall require the prior written consent of the Agency, irrespective of whether such services are protected by copyright. In such case, the Agency and the author shall be entitled to separate appropriate remuneration.

9.5 Any continued use of the Agency’s services or advertising materials for which the Agency has created conceptual or design templates after termination of the Agency agreement shall likewise require the prior written consent of the Agency, irrespective of whether such services are protected by copyright or not.

9.6 For uses pursuant to Clause 9.5, the Agency shall be entitled to remuneration as follows:
– in the first year after termination of the contract, the full agency fee agreed in the expired contract;
– in the second year after termination, half of the agreed fee;
– in the third year after termination, one quarter of the agreed fee.
From the fourth year after termination onwards, no further agency remuneration shall be payable.

9.7 For each unlawful use in violation of this Clause 9, the Client shall owe the Agency a contractual penalty (liquidated damages), irrespective of fault, in the amount of 30% of the total remuneration agreed in the Agency agreement. The judicial right of mitigation pursuant to Section 1336 (2) of the Austrian Civil Code (ABGB) is expressly excluded by mutual agreement. The Agency shall be entitled to claim damages exceeding the contractual penalty.

10 ATTRIBUTION AND CREDIT

10.1 The Agency shall be entitled to refer to the Agency and, where applicable, to the author on all advertising materials and in all advertising measures, without the Client being entitled to any remuneration in this respect.

10.2 The Client hereby consents that the Agency is entitled to refer to the existing or former business relationship with the Client by using the Client’s name and company logo on the Agency’s own promotional media, in particular on its website (reference notice), without the Client being entitled to any remuneration. The Client may revoke this consent at any time. Such revocation shall not affect the lawfulness of the reference made prior to the revocation. Further data protection information is available at https://www.pixit.design/en/privacy.

11 WARRANTY

11.1 The Agency provides warranty in accordance with the provisions of Sections 922 et seq. of the Austrian Civil Code (ABGB) and the specifications set out in the following clauses.

11.2 Delivery shall be deemed to take place at the time of transfer of risk; in the case of digital products, at the time the product is made available.

11.3 The Agency’s warranty obligation does not extend to defects attributable to the Client. In particular, the Agency shall not be liable for defects caused by modifications to the product initiated by the Client. Any duty of cooperation or duty to warn on the part of the Agency is excluded in this context.

11.4 The Client shall inspect the Agency’s deliveries/services immediately upon delivery/performance/provision and shall notify any defects without delay, but no later than within three days thereof; hidden defects shall be notified in writing within three days after their discovery, describing the defect in detail. Otherwise, the service shall be deemed approved. Oral or telephone complaints must be confirmed in writing without delay. Failure to notify defects in due time, in proper form, or at all shall result in the exclusion of warranty and damage claims as well as the right to contest the contract due to error caused by defects.

11.5 It is the Client’s responsibility to review the services for legal compliance, in particular with competition, trademark, copyright, and administrative law. The Agency shall not be liable to the Client for the legal admissibility of content that has been provided or approved by the Client. Any duty of cooperation or duty to warn on the part of the Agency is excluded in this context.

11.6 The warranty period shall be six months. The Client bears the burden of proof that the defect existed at the time of delivery (Clause 11.2). The presumption pursuant to Section 924 ABGB is excluded.

11.7 The right of recourse against the Agency pursuant to Section 933b (1) ABGB shall expire one year after delivery/performance/provision. The Client shall not be entitled to withhold payments due to alleged defects.

12 LIABILITY

12.1 Any liability of the Agency for damages shall require gross fault (gross negligence or intent) and shall be limited to compensation for direct and immediate material damage. Compensation for lost profits, consequential damages, indirect damages, or third-party damages is expressly excluded. This also excludes any liability of the Agency for claims asserted against the Client as a result of services provided by the Agency (e.g. advertising measures). In particular, the Agency shall not be liable for litigation costs, the Client’s own legal fees, costs of publishing judgments, or any claims for damages or other claims asserted by third parties. The Client shall indemnify and hold the Agency harmless in this respect. Any claims for damages asserted by the Client against the Agency shall in any case be limited in amount to the net order value.

12.2 The limitation of liability set forth in Clause 12.1 shall also apply if the Agency engages third parties for the performance of the contract, including employees, contractors, or other vicarious agents. This limitation of liability shall also apply accordingly to the personal liability of such third parties.

12.3 The Client shall bear the burden of proof for any fault on the part of the Agency; the applicability of Section 1299 of the Austrian Civil Code (ABGB) is excluded. Claims for damages asserted by the Client shall lapse and become time-barred six months after the damage and the liable party become evidently recognizable, but in any event no later than three years after the act or omission giving rise to the claim.

13 SOCIAL MEDIA CHANNELS

The Agency expressly informs the Client prior to placing the order that providers of “social media channels” (e.g. Facebook; hereinafter referred to as “Providers”) reserve the right, under their respective terms of use, to reject or remove advertisements and presences for any reason whatsoever. Providers are therefore not obliged to distribute content or information to users. Consequently, there exists a risk beyond the Agency’s control that advertisements or presences may be removed without justification. In the event of a complaint by another user, Providers may grant the possibility of submitting a counterstatement; however, even in such cases, the content is typically removed immediately. Restoring the original lawful status may take a considerable amount of time. The Agency performs its services based on the Providers’ terms of use, over which it has no influence, and which are also deemed to be an integral part of the Client’s order. By placing the order, the Client expressly acknowledges that these terms of use determine, in whole or in part, the rights and obligations of any contractual relationship. The Agency intends to perform the Client’s order to the best of its knowledge and belief and in compliance with the applicable guidelines of social media channels. However, due to the currently applicable terms of use and the ease with which any user may allege legal violations and thereby cause the removal of content, the Agency cannot guarantee that the commissioned campaign will be accessible at all times.

14 DATA PROTECTION

The Agency’s Privacy Policy is available online at https://www.pixit.design/en/privacy. Upon the Client’s request, the Agency shall provide the Privacy Policy without undue delay either by post or by email.

15 GOVERNING LAW

This Agreement and all mutual rights and obligations as well as any claims arising therefrom between the Agency and the Client shall be governed by the substantive laws of the Republic of Austria, excluding its conflict-of-law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

16 PLACE OF PERFORMANCE AND JURISDICTION

16.1 The place of performance shall be the registered office of the Agency.

16.2 The court with subject-matter jurisdiction at the registered office of the Agency shall have exclusive jurisdiction for all disputes arising between the Agency and the Client in connection with this contractual relationship. Notwithstanding the foregoing, the Agency shall also be entitled to bring legal action against the Client at the Client’s general place of jurisdiction.

17 RIGHT OF RETENTION / MISCELLANEOUS / FINAL PROVISIONS

17.1 Any right of retention on the part of the Client, in particular due to incomplete delivery or warranty claims, is expressly excluded.

17.2 Amendments to the contract, including amendments to these General Terms and Conditions, must be made in writing; this also applies to any waiver of this written form requirement. Oral side agreements and statements made by the Agency shall only be valid if confirmed by the Agency in writing.

17.3 The contractual and communication language shall be English.

17.4 The Client is obliged to notify the Agency in writing without undue delay of any changes to its delivery address, residential or business address, or habitual place of residence. Until such notification is received, declarations by the Agency may be validly sent to the last address provided by the Client.

17.5 The Agency is entitled to assign all or individual rights arising from this business relationship to third parties. The Client hereby gives its prior consent to such assignment.

17.6 Where personal designations referring to natural persons are used in the masculine form only, they shall refer equally to women and men. When applying such designations to specific natural persons, the respective gender-specific form shall be used.