TERMS & CONDITIONS OF
“Spoonful DACH”, officially registered as Spoonful F&B Marketing GmbH (Mosheimergasse 9/2, 1210 Vienna, Austria) and “Spoonful Holding” (Spoonful ApS, Tofteengen 7, 4000 Roskilde, Denmark), collectively referred to as “Spoonful” in these GTC.
1.1 These General Terms and Conditions (“GTC”) apply to all projects/cooperations between Spoonful (also called “the Agency”) and the Client.
1.2 These GTC shall also apply to all future business relationships between Spoonful and the Client. Any terms and conditions of a Client, that conflict with or deviate from these Terms and Conditions, shall only become effective if they are recognized by Spoonful in writing prior to project start.
2.1 The basis for the conclusion of the contract is Spoonful’s respective proposal or the Client’s order, in which the scope of services and the fee are set out. Spoonful’s quotations/offers are binding for the duration of the project period.
2.2 The contract shall come into effect upon Spoonful’s acceptance of the Client´s order. Acceptance must be made in writing, unless Spoonful clearly indicates (e.g. by taking action on the basis of the offer or order) that the order has been accepted.
3.1 The basis of every project is a framework (briefing) provided by the Client, or a resulting proposal made by Spoonful. Within the briefing, there is freedom in the fulfillment of the order. The Client and Spoonful have a relationship of mutual trust for the implementation of the Client’s marketing services. Spoonful guarantees close cooperation and will always represent the Client’s interests to the best of its ability.
3.2 In order to create a project scope that are as clear as possible, and to ensure the efficient processing of projects, the scope of the project is defined in more detail in the form of a service description after the proposal has been accepted.
3.3 The Client is obliged to cooperate in the success of the project. In particular, the Client shall ensure that Spoonful is given complete access to all documents and instructions necessary for the optimal fulfillment of the project (in particular essential information, briefings, feedback, tool access, any documents and images, feedback to queries, etc.). For its part, the Client shall also ensure an organizational environment that allows for efficient implementation of the assignment in line with the project plan.
3.4 Spoonful shall provide the agreed service on its own responsibility, but shall be entitled to use subcontractors to perform the service without informing the Client in advance.
3.5 Spoonful shall carefully document the services that have been carried out and notify the Client as soon as the expenses incurred threaten to exceed the agreed budget by more than 10%, so that an appropriate solution can be found together with the Client.
4.1 Agreements on deadlines and dates must be recorded or confirmed in writing. Contractually agreed delivery times shall commence on the date of acceptance of the order by Spoonful, but not before all necessary work documents and information have been provided by the Client and any advance payment invoice has been settled.
4.2 Spoonful has fulfilled its contractual obligations when the order has been executed in accordance with the accepted offer and the resulting contractual service has been delivered. The fulfillment of the service content is not measured by the individual perception of the Client, but by the proper and timely fulfillment of the service elements set out in the project order.
4.3 Failure to meet deadlines and delivery times shall entitle the Client to assert its statutory rights if it has granted Spoonful a reasonable grace period of at least 14 days. This period shall commence upon Spoonful’s receipt of the Client´s wish for repair. If the grace period expires without result, the Client may demand a price reduction or, if no service has been provided, withdraw from the contract. Compensation for damages caused by delay can only be demanded up to the value of the order.
4.4 If Spoonful is unable to meet a deadline due to a Client-induced delay, Spoonful shall be entitled to set new delivery dates, taking into account its own availability. If scheduled deliveries that are absolutely necessary for the planned continuation of work (e.g. feedback, delivery of content & data) are delayed, Spoonful may, after issuing a one-off warning, claim additional costs for resources that have already been scheduled but not utilized (at least 30% of the lost fee for the agreed period). In this case, any deadlines previously agreed by Spoonful are no longer binding and must be renegotiated.
4.5 Delivery and performance deadlines shall also be extended by the period in which the Client is in default of payment. If the contracting parties subsequently agree additional services that affect the agreed deadlines, these deadlines shall be extended by a reasonable period.
5.1 All prices quoted by Spoonful are net prices (EUR). For Clients from Austria, the applicable VAT will be added to the invoice. Clients from Germany and other countries are exempt from VAT (reverse charge procedure or B2B services to third countries).
5.2 All of Spoonful’s services are provided for a fee. Only the time spent in the offer phase on preparing the offer, project planning and, if applicable, scheduling is free of charge.
5.3 Unless otherwise agreed, Spoonful shall charge 30% of the net order amount as a down payment fee upon commencement of the collaboration.
5.4 Following a down payment, further (partial) invoices shall be issued monthly depending on the progress of the project or – in the case of ongoing retainer projects – for the current month of performance. All invoices have a 14-day payment term and must be paid by the Client within this period.
5.5 If, due to a delay for which the Client itself is responsible, a service cannot be delivered in full or in part within one month as planned, the client shall nevertheless owe Spoonful the invoice amount originally specified in the project order. In this case, Spoonful shall make a subsequent delivery of the service within a reasonable period of time.
5.6 External costs associated with the implementation of projects managed by Spoonful (such as media budgets, influencer fees, buyouts, etc.) are listed separately on the corresponding invoice and must be paid in advance by the Client. Prior approval for these costs will be obtained from the Client. If the agency manages external costs for the Client, a fee will be charged for this service as a pro rata commission or fixed price. The amount of this fee is determined by the offer.
5.7 The Agency shall be entitled to reimbursement of travel expenses for necessary trips required for the execution of the project, even if these are incurred after the offer has been prepared. Reimbursements shall only be made on presentation of the original receipts and shall be limited to the amounts permitted under tax law. The agency shall coordinate each trip with the client in good time before booking and have it approved in advance.
5.8 In the event of cancellations without replacement that do not comply with the agreed notice periods, or in the event of premature termination of an ongoing project, the agency shall receive a cancellation fee from the Client for the planning and purchasing work it has already performed and the capacities it has kept free. The default fee shall correspond to at least 70% of the total loss of fees incurred as a result of the cancellation or premature termination. The same applies to reductions of more than 15% in an agreed, ongoing scope of services (retainer), if the agreed notice period is not observed.
5.9 Discounts granted shall apply exclusively in the context of the execution of the overall, full project as agreed upon acceptance of the proposal. Discounts granted on the basis of follow-up projects shall also only apply, if a signed follow-up order in an appropriate amount already exists at the time of final invoicing of the initial order. Discounts do not affect the calculation of a possible cancellation fee.
5.10. If the Client delays payment, reminder fees and interest fees shall be charged from the first day after the payment due date. The reminder fees currently amount to EUR 49.00 net. Additional interest fees shall be charged in accordance with the current base interest rate plus 9 percentage points.
5.11. The Agency reserves the right to adjust its prices at appropriate intervals, based on the “Producer Price Index for Services, Category Advertising Agencies” of the German Federal Statistical Office. The client shall be informed in good time of any forthcoming price changes and shall receive a new offer, which may be accepted or rejected.
5.12. Weekend or public holiday work as well as mandatory assignments outside opening hours (6 p.m. – 8 a.m. CET) shall be charged with a surcharge of +25% on the hourly rate offered. The Agency does not have to inform the Client of this separately.
5.13. If unplanned additional work arises at the client’s request or due to circumstances that are not attributable to the Agency’s work, the Agency shall report this to the Client and charge the hours incurred at its current hourly rate.
6.1 Copyright, rights of use and ownership of the Agency’s work in the context of pitches or other presentations submitted to the client prior to the agreement of a project order shall remain with the Agency. The Client may not use, distribute or edit this work for its own purposes without the Agency’s permission.
6.2 After payment, all rights of use to the work results created by the Agency and approved and paid for for advertising purposes – irrespective of whether they are protected by copyright by the Agency – shall be transferred to the Client for an unlimited period of time and with regard to content.
6.3 The Agency shall transfer to the Client the necessary rights of use and copyrights of third parties (e.g. photographers, illustrators, musicians as well as actors, speakers, models) to approved and paid work results, insofar as this is necessary for the advertising measures agreed in the contract. If these rights are limited in terms of time, space, content or type of use (advertising media) and a transfer to the required extent is not possible, the Agency shall inform the Client of this and act in accordance with the Client’s further instructions. Any additional costs incurred shall be borne by the Client.
7.1 The Agency may also work for other clients; the Client’s consent is not required.
7.2 The Agency shall be entitled to use the Client’s name and logo free of charge for self-promotion purposes even after completion of the project order.
8.1 The Agency undertakes to maintain the strictest confidentiality towards unauthorized third parties with regard to all business and trade secrets as well as all other confidential information of which it becomes aware during its activities or which becomes known to it, in particular with regard to information of the Client marked as confidential.
8.2 This confidentiality obligation shall continue for a further 24 months after termination of the contractual relationship and shall also apply to third parties commissioned by the Agency to provide services.
9.1 Any notification of defects by the Client must be made in text form and contain a precise description of the defect. The Agency shall be obliged to rectify the defect within a period of time appropriate to the nature and severity of the defect.
9.2 After receiving notification from the Agency of the correction of the defect, also in text form, the Client must check the result of the correction within five working days. If the correction is successful, the Client should formally accept the service. If the Client does not declare acceptance within the aforementioned period or continues to report a significant defect, the project order is deemed to have been finally accepted. However, should the Client report a continuing defect in due form and time, the Agency is both entitled and obliged to make a further attempt to rectify the defect within a reasonable period of time.
9.3 The Agency shall be liable to the Client for exercising the care expected of a prudent advertising professional in the context of the project order. The Agency and its representatives and vicarious agents shall not be liable for slight negligence, except in the case of breaches of material contractual obligations on which the contractual partner regularly relies. Minor breaches of duty must be rectified by the Agency after discovery and within 30 days at the latest.
9.4 In the event of damage attributable to a grossly negligent breach of duty by the Agency, its representatives or vicarious agents, liability shall be limited to compensation for foreseeable, contract-typical and direct damage according to the type of service provided, but may not exceed the total fee for the order.
9.5 Claims for damages by the Client resulting from a gross breach of duty by the Agency shall lapse after one year.
9.6 The Agency’s tasks do not include legal examination or liability for legal problems, in particular those arising from copyright law, competition law, trademark law and food law. The Agency shall inform the Client in good time of any legal risks that it recognizes in the content or design of the commissioned advertising measures. However, the legal examination and liability for published content remains the responsibility of the Client.
9.7 If the Agency commissions third parties to fulfill assigned tasks on behalf of the Client, in particular, but not exclusively, influencers and journalists, these third parties shall be liable to the Client for their published content. In particular, the cooperation with influencers is regulated by a separate contract between the influencer and the Client, which the Agency can arrange on behalf of the Client.
10.1 The cooperation agreement shall remain valid for an indefinite period as long as the Client commissions the Agency to provide marketing services for its brand. It shall only be replaced by a new agreement which both parties accept in writing as a new contractual basis.
10.2 The cooperation agreement ends with the express, written termination by one of the parties or by mutual agreement. Termination of this agreement requires written notification, whereby the regular notice period is three months to the end of the month.
10.3 In the case of ongoing monthly project orders (so-called retainers), the project order shall be automatically extended by a further 6 months under the same conditions unless it is terminated in writing no later than 3 months to the end of the month before the current project order expires. For reductions of more than 15% of the current scope of services (in relation to the agency fee), the client must also give 3 months’ notice to the end of the month. If this deadline is not met, the project order is automatically extended by a further 6 months under the same conditions.
11.1 There are no verbal collateral agreements to these GTC. Amendments and additions must be made in writing.
11.2 Should any of the provisions described herein be or become invalid, or should these GTC contain loopholes, this shall not affect the validity of the remaining provisions. The invalid or ineffective provision shall be replaced by another valid provision that comes as close as possible to the original intention of the contracting parties.
11.3 The applicable law and place of jurisdiction is Vienna, Austria