Last Updated: May 1st 2025

01 / SCOPE AND CONCLUSION OF CONTRACT

1.1
Mount & Sea Atelier (hereinafter referred to as the “Agency”) provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the Agency and the client, even if not explicitly referenced. These GTC apply exclusively to legal relationships with entrepreneurs (B2B).

1.2
The version of the GTC valid at the time of contract conclusion shall apply. Deviations from these terms or any supplementary agreements with the client are only valid if confirmed in writing by the Agency.

1.3
Any general terms and conditions of the client shall not be accepted, even if known, unless explicitly agreed otherwise in writing on a case-by-case basis. The Agency expressly objects to any such terms. A further objection by the Agency to the client’s terms and conditions shall not be required.

1.4
Changes to these GTC will be communicated to the client and shall be deemed agreed unless the client objects in writing within 14 days. The client will be explicitly informed of the significance of remaining silent and of the specifically amended clauses. This implied consent does not apply to changes affecting essential service components or fees.

1.5
Should any provision of these General Terms and Conditions be or become invalid, the validity of the remaining provisions and any contracts based thereon shall remain unaffected. The invalid provision shall be replaced by a valid one that comes as close as possible to the intended purpose.

1.6
All offers made by the Agency are non-binding and subject to change.

02 / SOCIAL MEDIA

The Agency explicitly informs the client, prior to placing an order, that providers of social media platforms (e.g., Instagram, hereinafter referred to as “Providers”) reserve the right, under their terms of use, to reject or remove advertisements and content for any reason. Providers are not obligated to distribute content or information to users.
Therefore, there exists a risk—beyond the control of the Agency—that advertisements or content may be removed without cause. In the event of a user complaint, Providers may allow for a counterstatement, but will generally remove the content immediately. Restoring the original, lawful status may take time.
The Agency operates based on the Providers’ terms of use, over which it has no influence, and incorporates these conditions into the client’s project. By placing an order, the client expressly acknowledges that these terms of use co-govern the rights and obligations of any resulting legal relationship.
The Agency undertakes to perform the client’s project to the best of its ability and in compliance with the applicable guidelines of the relevant social media platforms. However, due to the current terms of use and the ease with which any user can allege a violation, thereby prompting content removal, the Agency cannot guarantee that the commissioned campaign will remain continuously available or accessible.

03 / CONCEPT AND IDEA PROTECTION

If a prospective client invites the Agency to create a concept prior to the conclusion of a main contract, and the Agency complies with this invitation, the following provisions shall apply:

3.1
By inviting the Agency to develop a concept and by accepting this invitation, the prospective client and the Agency enter into a contractual relationship (“pitching agreement”). This agreement is also subject to these General Terms and Conditions.


3.2
The prospective client acknowledges that the Agency provides cost-intensive preliminary services in the course of concept development, even though the client has not yet undertaken any contractual obligations.

3.3
The concept, in its verbal and visual components, is protected under copyright law to the extent it meets the required threshold of originality. Use or modification of these components without the Agency’s prior consent is not permitted, as stipulated by copyright law.


3.4
Beyond that, the concept may include advertising-related ideas which may not reach the threshold of copyright protection. These ideas are fundamental to the creative process and may be the initial spark from which the entire marketing strategy emerges. Therefore, those elements of the concept that are unique and give the marketing strategy its distinctive character are protected.
Such ideas include, in particular, advertising slogans, texts, graphics, illustrations, promotional materials, and similar, even if they are not eligible for copyright protection.

3.5
The prospective client agrees not to use or exploit — nor to have used or exploited by third parties — the creative advertising ideas presented by the Agency outside of a future contract without the Agency’s prior written consent.

3.6
Should the prospective client believe that certain ideas presented by the Agency had already been developed independently prior to the presentation, they must notify the Agency in writing by email within 14 days of the presentation date, providing evidence that clearly demonstrates the earlier origin of such ideas.

3.7
If such notification is not provided, both parties shall assume that the Agency presented an original idea to the client. If the idea is subsequently used by the client, it is to be assumed that the Agency has contributed significantly to its development and should be credited accordingly.

3.8
The prospective client may release themselves from the obligations set out in this section by paying reasonable compensation to the Agency, plus 20% VAT. The release shall only take effect once the full payment has been received by the Agency.


04 / SCOPE OF SERVICES, PROJECT EXECUTION AND CLIENT COOPERATION OBLIGATIONS

4.1
The scope of services to be provided by the Agency is defined in the service description within the agency agreement, any order confirmation issued by the Agency, and any applicable project briefing or documentation ("Proposal Documents"). Any subsequent changes to the scope of services must be confirmed in writing by the Agency. Within the framework specified by the client, the Agency retains creative freedom in the execution of the project.

4.2
All deliverables provided by the Agency (particularly drafts, sketches, final artwork, mock-ups, blueprints, copies, color proofs, and electronic files) must be reviewed by the client and approved within three working days of receipt. If no feedback is received within this period, the deliverables shall be deemed approved by the client.

4.3
The client shall provide the Agency in a timely and complete manner with all information and materials necessary for the performance of services. The client must also inform the Agency of any circumstances that may be relevant to the execution of the project, even if such circumstances only become known during the course of the project. The client shall bear any additional costs resulting from work that must be repeated or delayed due to incorrect, incomplete, or subsequently modified information provided by the client.

4.4
The client is further obliged to check all materials provided to the Agency (e.g. photos, logos, etc.) for potential copyrights, trademark rights, proprietary rights, or any third-party rights (rights clearance), and guarantees that such materials are free of third-party rights and may be used for the intended purpose.
The Agency shall not be liable—except in cases of gross negligence or after failing to fulfill its duty to warn—for any violations of third-party rights arising from materials provided by the client. Should the Agency be held liable by a third party due to such a violation, the client shall indemnify and hold the Agency harmless. The client shall compensate the Agency for any resulting damages, including reasonable legal fees. The client also agrees to assist the Agency in defending against such claims and shall, without being prompted, provide all necessary documentation for this purpose.

05 / THIRD-PARTY SERVICES AND COMMISSIONING OF THIRD PARTIES

5.1
The Agency is entitled, at its own discretion, to perform the services itself, to engage qualified third parties as vicarious agents in the performance of contractual services, and/or to delegate such services to third parties (“Third-Party Services”).

5.2
The commissioning of third parties in the context of Third-Party Services shall take place either in the Agency’s own name or in the client’s name, the latter only after prior notification to the client. The Agency will carefully select such third parties and ensure that they possess the necessary professional qualifications.

 5.3
For contractual obligations toward third parties that were disclosed to the client and that extend beyond the term of the agency agreement, the client shall assume responsibility. This obligation expressly applies in the event of a termination of the agency agreement for good cause.

06 / DEADLINES

6.1
Unless expressly agreed as binding, specified delivery or performance deadlines shall be considered approximate and non-binding. Binding deadlines must be documented in writing and confirmed in writing by the Agency.

6.2
If delivery or performance is delayed due to circumstances beyond the Agency’s control—such as force majeure or other unforeseeable events that cannot be prevented with reasonable means—the Agency’s obligations shall be suspended for the duration and scope of the hindrance, and any agreed deadlines shall be extended accordingly. If such delays persist for more than two months, both the client and the Agency shall be entitled to withdraw from the contract.

6.3
If the Agency is in default, the client may only withdraw from the contract after granting the Agency a written grace period of at least 14 days, which must expire without result. Claims for damages due to non-performance or delay are excluded unless the client can prove intent or gross negligence.

07 / PREMATURE TERMIATION

7.1
The Agency is entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if:
a) the performance of the service becomes impossible due to reasons attributable to the client or is delayed despite the setting of a 14-day grace period;
b) the client repeatedly violates essential contractual obligations—such as the payment of due amounts or cooperation duties—even after a written warning and setting of a 14-day grace period;
c) justified concerns arise regarding the client’s creditworthiness, and the client fails to provide advance payment or adequate security upon the Agency’s request.

7.2
The client is entitled to terminate the contract without a grace period for good cause. Good cause shall in particular exist if the Agency repeatedly breaches essential provisions of this contract, even after a written warning and a reasonable grace period of at least 14 days for remedying the breach.


08 / FEES

8.1
Unless expressly agreed otherwise, the full project fee is due prior to the start of the project. A project slot will only be reserved, and preparatory work will only begin, once payment has been received. This ensures both the security of the project timeline and the coverage of initial efforts.
The Agency reserves the right to arrange for interim invoices, advance payments, or installment payments (down payments) for certain projects—particularly long-term or budget-intensive ones with a (yearly) net volume of €2,500 or more. Deviating payment terms may be outlined in a written individual agreement.

8.2
Unless otherwise agreed in writing, and subject to timely advance payment, the Agency is entitled to remuneration at market rates for services rendered and for the granting of usage rights under copyright and trademark law. According to the small business regulation (§ 6 para 1 no. 27 UStG), no VAT is charged.

8.3
All services provided by the Agency that are not explicitly covered by the agreed fee shall be invoiced separately. All cash expenses incurred by the Agency shall be reimbursed by the client.

8.4
Cost estimates issued by the Agency are non-binding. If it becomes apparent that actual costs will exceed the written estimate by more than 15%, the Agency will notify the client. This cost increase shall be deemed accepted unless the client objects in writing within three business days of such notice and simultaneously suggests more cost-effective alternatives. For deviations of up to 15%, no special notification is required. These are deemed approved by the client in advance. Additional costs may result in adjustments to the payment schedule or require additional advance payments.

8.5
If the client cancels a confirmed project after making an advance payment or makes unilateral changes, the Agency is entitled to retain the full agreed fee. Additionally, all third-party expenses incurred must be reimbursed. If the cancellation is not due to grossly negligent or intentional conduct by the Agency, no pro-rata refund is due (§ 1168 AGBG does not apply). The client shall indemnify and hold the Agency harmless from any third-party claims, particularly those of subcontractors. Upon payment, the client does not acquire usage rights to any services rendered up to that point; any unused concepts, drafts, or documents must be returned to the Agency without delay.

09 / PAYMENT AND RETENTION OF TITLE

9.1
Unless otherwise agreed in writing for an individual case, all fees are payable immediately upon receipt of invoice, without deductions. This also applies to the reimbursement of any cash expenses and other outlays. All goods and deliverables provided by the Agency remain the property of the Agency until full payment of all related fees, including any ancillary costs, has been received.

9.2
In the event of late payment, the statutory default interest applicable to business transactions shall apply. Furthermore, in the case of default, the client agrees to reimburse the Agency for any reminder and collection costs incurred, insofar as they are necessary for the appropriate legal enforcement of claims. This includes, at minimum, the cost of two written payment reminders at the standard market rate (currently at least €20.00 each), as well as one reminder issued by a lawyer. The Agency reserves the right to assert further claims and damages.

9.3
In the event of default, the Agency is entitled to make all services and partial services rendered under other contracts with the client immediately due and payable.

9.4
Furthermore, the Agency is under no obligation to provide any additional services until all outstanding amounts have been settled (right of retention). The client's obligation to pay remains unaffected.

9.5 
If payment by instalments has been agreed and the client fails to pay on time, the Agency reserves the right to demand immediate payment of the entire outstanding amount (acceleration clause).

9.6
The client is not entitled to offset their own claims against claims of the Agency, unless such counterclaims have been acknowledged in writing by the Agency or established by a court of law.

10 / OWNERSHIP AND COPYRIGHT

10.1
All services provided by the Agency, including materials from presentations (e.g. concepts, ideas, drafts, sketches, final artwork, layouts, negatives, mock-ups, electronic files), as well as individual components or original versions, remain the property of the Agency and may be reclaimed at any time, particularly upon termination of the contract.
Upon payment of the fee, the client acquires the right to use the deliverables for the agreed purpose. Unless otherwise agreed, usage is limited to the EU. Full payment of the fee invoiced by the Agency is a prerequisite for acquiring any rights of use or exploitation. If the client uses the deliverables prior to full payment, such use is based solely on a revocable loan arrangement.

10.2
Any modification or adaptation of the Agency's work—especially further development by the client or third parties—is only permitted with the express consent of the Agency and, where applicable, the original creator. The delivery of so-called "open files" (editable design files) is not part of the standard agreement. The Agency is not obliged to release them. Therefore, without a contractual transfer of rights for these electronic works, the client has no legal claim to them.

10.3
For any use of the Agency's deliverables beyond the originally agreed scope or purpose—regardless of copyright protection—the prior written consent of the Agency is required. Such additional use is subject to a separate, reasonable fee.

10.4
After the end of the contract, any use of the Agency’s designs or materials (including those that are not copyright-protected) requires prior approval by the Agency, particularly if the deliverables were conceptually or creatively developed by the Agency.

10.5
For such continued usage (as defined in 10.4), the Agency is entitled to the full contractual fee in the first year after contract termination, half that amount in the second year, and one-quarter in the third year. From the fourth year onward, no further fee is due.

10.6
In the event of unlawful use of the Agency's deliverables, the client is liable to pay twice the appropriate fee for such use.

11 / CREDITS & IDENTIFICATION

11.1
The Agency is entitled to include its name and, where applicable, that of the original creator on all advertising materials and campaigns, without entitling the client to any compensation.

11.2 Unless explicitly revoked in writing by the client at any time, the Agency is also entitled to reference the existing or former business relationship with the client on its own marketing materials, especially on its website, using the client's name and company logo (reference notice).

12 / WARRANTY

12.1
The client must report any defects without delay, and in any case within eight calendar days of delivery or performance by the Agency. Hidden defects must be reported within eight calendar days of their discovery, in writing and with a detailed description of the issue. If not reported in due time, the service shall be deemed accepted, and all warranty, damage, and rescission claims due to defects are excluded.

12.2
If a defect is reported timely and justifiably, the client has the right to rectification or replacement by the Agency. The Agency will remedy the defect within a reasonable timeframe, provided the client enables all necessary measures for investigation and remediation.

The Agency may refuse rectification if it is impossible or would entail disproportionate effort. In that case, the client is entitled to legal remedies such as price reduction or withdrawal from the contract. If rectification is pursued, the client must return the defective physical item at their own cost.

12.3
The legal assessment of services provided by the Agency (especially regarding competition, trademark, copyright, or administrative law) is solely the client's responsibility. The Agency is only obliged to perform a basic legal check.
The Agency is not liable for the legal admissibility of content provided or approved by the client, unless gross negligence or willful misconduct is proven. Any duty to warn is considered fulfilled upon provision of relevant information.

12.4
The warranty period is six months from delivery or completion. The right of recourse under § 933b para. 1 AGBG expires one year after transfer.
The client is not entitled to withhold payment due to alleged defects. The statutory presumption rule of § 924 AGBG is excluded; the client bears the burden of proof for the existence of a defect from the time of delivery.

13 / LIABILITY & PRODUCT LIABILITY

13.1
In cases of slight negligence, the Agency and its assistants, employees, or appointed third parties ("Representatives") are not liable for property or financial damages of the client—regardless of whether the damages are direct or indirect, lost profits, consequential losses, delays, impossibility, breach of duty, pre-contractual liability, or deficient performance. Gross negligence must be proven by the damaged party. Any limitations of liability for the Agency also apply to its Representatives.

13.2
The Agency is not liable for claims made against the client resulting from services provided by the Agency (e.g., advertising measures), provided the Agency fulfilled its duty to warn or the issue was not foreseeable. Slight negligence is irrelevant in this context.
In particular, the Agency is not liable for litigation costs, client’s attorney fees, publication costs of court decisions, or damage claims and other third-party demands. The client agrees to fully indemnify and hold the Agency harmless in such cases.

13.3
Damage claims by the client expire six months from becoming aware of the damage, and in any case three years from the date of the incident. Liability is limited to the net value of the order.

14 / APPLICABLE LAW

This agreement and all rights, obligations, and claims arising from or in connection with it are governed by Austrian substantive law, excluding its conflict of law rules and the UN Sales Convention.


15 / PLACE OF OPERATIONS & JURISDICTION

15.1
The place of performance for all obligations is the registered office of the Agency. When shipping goods, risk passes to the client upon handover to the transport company commissioned by the Agency.

15.2
The competent court at the Agency’s registered office shall have jurisdiction over all legal disputes arising from or in connection with this contract. Nevertheless, the Agency is entitled to bring legal action against the client at their general place of jurisdiction.

15.3
Where gender-specific terms referring to natural persons are used in the masculine form in this contract, they apply equally to all genders. When referring to specific individuals, the appropriate gender-specific form must be used. The court with subject-matter jurisdiction at the Agency’s registered office is agreed as the place of jurisdiction. Notwithstanding this, the Agency reserves the right to bring legal action against the client at their general place of jurisdiction.


Vienna, 01.05.2025 | Mount & Sea Atelier e.U.


Mount & Sea Atelier e.U. | Engerthstr. 82/2/3 1200 Vienna, Austria
www.themountandsea.com | Tel.: 0676 306 2017 | Mail: info@themountandsea.com | UID-Number: ATU82048856
Bank Details: Mount & Sea Atelier | IBAN: AT03 2081 5000 4646 4731 | BIC: STSPAT2GXXX