General Terms & Conditions (GTC - EN)
PREAMBLE
webist provides consulting services in the areas of public relations, communications and management. The services currently offered can be accessed here: https://webist.digital
webist provides services exclusively to entrepreneurs and not to consumers within the meaning of sec. 1 Austrian Consumer Protection Act (KSchG).
GENERAL PRINCIPLES / SCOPE
These GTC apply exclusively to all legal transactions between webist and the clients. The version valid at the time of conclusion of the contract shall be decisive. As a rule, webist only concludes contracts on the basis of these GTC. The GTC also apply to all future contractual relationships, even if no express reference is made to them in additional agreements.
webist does not accept any general terms and conditions of the clients, even if webist is aware of them, unless a deviation from these GTC has been expressly agreed in writing in the individual case. webist expressly objects to the applicability of the clients’ general terms and conditions. No further objection by webist to any such terms and conditions of the clients is required.
Amendments to the GTC will be communicated to the clients and shall be deemed agreed if the clients do not object to the amended GTC in writing within 14 days. The clients will be expressly informed of the legal consequences of their silence.
Quotations made by webist are subject to change and non-binding.
SCOPE OF THE CONSULTING ASSIGNMENT / CLIENTS’ DUTY TO COOPERATE
The scope of the assignment specifically agreed between webist and the respective clients is determined in each individual case by contract and results from the quotation documents (written offer, declaration of acceptance by the clients). Subsequent changes in performance deviating from the quotation documents must be agreed in writing.
Within the framework specified by the clients, webist may freely determine how the assignment is to be fulfilled.
All services (in particular social media content) provided by webist must be reviewed by the clients and approved within three working days of receipt. If approval is not granted in time, the services shall be deemed approved by the clients.
The clients must provide webist with all information and documents required for webist to perform its services. The clients must inform webist of all circumstances that are relevant for the execution of the services. This also applies if such circumstances only become known during performance of the assignment. If additional work arises because work has to be repeated or is delayed due to incorrect, incomplete or subsequently changed information provided by the clients, such additional work shall be borne by the clients.
If documents (logos, photos, graphics, etc.) are provided by the clients for the execution of the assignment, the clients are obliged to check these documents for any copyrights, trademarks, designations or other rights of third parties and warrant to webist that these documents are free of third-party rights and may be used by webist for the assignment. In the event of slight negligence or after fulfilling its duty to warn, webist shall not be liable to the clients for the infringement of such third-party rights by documents provided by the clients. The clients shall indemnify and hold webist harmless if webist is used by a third party on the basis of such an infringement. In such a case, the clients shall compensate webist for all disadvantages arising from claims by third parties, in particular the costs of adequate legal representation. The clients undertake to support webist in defending against any claims by third parties. For this purpose, the clients shall provide webist with all documents without being requested to do so.
THIRD-PARTY SERVICES / COMMISSIONING OF THIRD PARTIES
webist is entitled to have the tasks incumbent on it performed in whole or in part by third parties (“third-party services”).
The commissioning of third parties within the scope of a third-party service shall be carried out either in webist’s own name or in the name of the clients. Commissioning of third parties in the name of the clients shall only take place after prior information to the clients. webist selects such third parties with due care and ensures that they have the necessary professional qualifications.
The clients must assume obligations towards third parties which have been disclosed to them and which extend beyond the term of the contract. This expressly also applies in the event of termination of the contract for good cause.
If third parties are commissioned in the name of the clients, such third parties do not act as vicarious agents of webist.
The clients undertake not to commission, either directly or indirectly, any services of the same or a similar kind from those persons or companies used by webist to fulfil its contractual obligations during the term of this contractual relationship and for a period of three years after its termination.
DEADLINES
Delivery and performance periods indicated by webist are non-binding unless expressly agreed otherwise.
If webist’s delivery/performance is delayed for reasons beyond webist’s control, such as force majeure and other unforeseeable events that cannot be averted by reasonable means, webist’s obligations to perform shall be suspended for the duration and extent of the impediment. The deadlines will be extended accordingly. If such delays last for more than two months, both webist and the clients are entitled to withdraw from the contract.
If webist is in default, the clients may withdraw from the contract after granting webist a reasonable grace period of 14 days in writing, which expires without result. The clients shall have no claims for damages for non-performance or delay, except in the case of proven intent or gross negligence.
SOCIAL MEDIA CHANNELS
Before an assignment is placed, webist expressly points out to the clients that providers of social media channels (e.g. Facebook, Instagram, LinkedIn, XING, etc. – “providers”) reserve the right in their terms of use to reject or remove advertisements and corporate presences without giving reasons. The providers are therefore not obliged to forward content and information to users. There is therefore a risk, which cannot be calculated by webist, that postings, advertisements and corporate presences (“content”) will be removed without cause. In the event of a complaint by another user, the providers offer the possibility to submit a counterstatement, but even in this case the content is removed immediately. Restoring the original lawful status may then take some time. webist works on the basis of the providers’ terms of use, over which it has no influence, and also bases the clients’ assignment on them. By placing the assignment, the clients expressly acknowledge that these terms of use (co-)determine the rights and obligations arising from any contractual relationship. webist will execute all assignments of the clients to the best of its knowledge and belief and comply with the providers’ guidelines. However, due to the currently applicable terms of use and the ease with which any user can claim infringements and have content removed, webist cannot guarantee that content will be available at all times.
PROTECTION OF CONCEPTS AND IDEAS
If potential clients have invited webist to prepare a concept and webist complies with this invitation before the main contract is concluded, the following shall apply:
By the invitation and webist’s acceptance thereof, the potential clients and webist enter into a contractual relationship (“pitching contract”). This pitching contract is subject to these GTC.
The potential clients acknowledge that webist already incurs cost-intensive preliminary work in developing the concept, although the potential clients themselves have not yet assumed any performance obligations.
The concept, in its linguistic and graphic parts, is protected under the Austrian Copyright Act to the extent it constitutes a work. Use and modification of these parts without the consent of webist is not permitted to the potential clients on the basis of copyright law alone.
The concept may also contain advertising-relevant ideas that do not reach the level of a work and are therefore not protected under the Copyright Act. These ideas form the starting point of every creative process and can be defined as the spark for everything subsequently created and thus as the origin of the marketing strategy. Those elements of the concept which are distinctive and give the marketing strategy its characteristic shape are therefore protected. For the purposes of this agreement, ideas include in particular strategies, texts, graphics and illustrations, advertising material, etc., even if they do not reach the level of a work.
If no main contract is concluded, the potential clients undertake to refrain from economically exploiting or having exploited, or from using or having used, the creative advertising ideas presented by webist as part of the concept.
If the potential clients are of the opinion that webist has presented ideas which were already known to them before the presentation, they must notify webist thereof by e-mail within 14 days from the day of the presentation, providing evidence that allows a chronological assignment.
If such notification is not made, it shall be deemed that webist has presented a new idea to the potential clients. If this idea is used by the potential clients, it shall be assumed that webist was thereby remunerated.
The potential clients may release themselves from their obligations under this section by paying reasonable compensation plus 20% VAT. The release shall become effective only after full receipt of the compensation by webist.
REMUNERATION
After acceptance of the offer, invoicing for the full amount agreed in the offer shall be issued automatically, unless expressly agreed otherwise.
Unless otherwise agreed, webist’s claim to the remainder of the remuneration for each individual service arises as soon as such service has been rendered. webist is entitled to request advance payments to cover its expenses. For assignments with an (annual) budget of EUR 8,450 (net) or more or assignments extending over a longer period, webist is entitled to issue interim or advance invoices or to call off instalment payments.
The remuneration is understood to be net remuneration plus statutory VAT. In the absence of an agreement in the individual case, webist shall be entitled to market-standard remuneration for the services rendered and the granting of rights of use under copyright and trademark law.
All services provided by webist which are not expressly covered by the agreed remuneration shall be charged separately. All cash expenses incurred by webist in fulfilling the contract shall be reimbursed by the clients.
Cost estimates provided by webist are non-binding. An overrun of costs shall be deemed approved by the clients if they do not object in writing within three working days after being notified and at the same time indicate cost-saving alternatives. In the event of a cost overrun of up to 15%, no separate notification is required. This overrun of the cost estimate is deemed to have been approved by the clients in advance.
If the clients unilaterally amend or discontinue work commissioned without involving webist – notwithstanding any ongoing support provided by webist – they shall remunerate webist for the services provided up to that point in accordance with the remuneration agreement and reimburse all costs incurred. Insofar as the discontinuation is not due to a grossly negligent or intentional breach of duty by webist, the clients shall furthermore reimburse webist the full remuneration agreed for this assignment, whereby the set-off provision of sec. 1168 AGBG is excluded. The clients shall indemnify and hold webist harmless against any claims by third parties arising from the discontinuation of the assignment, in particular against claims by contractors of webist. This shall not apply if the discontinuation of the assignment is due to gross negligence or intentional breach of duty by webist.
By paying the remuneration, the clients do not acquire any rights of use to work already performed; concepts, drafts and other documents not executed must be returned to webist without delay.
PAYMENT, RETENTION OF TITLE
The remuneration is due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms have been agreed in writing in the individual case. This also applies to the re-invoicing of any cash expenses and other outlays. Goods delivered by webist remain the property of webist until full payment of the remuneration including all ancillary claims.
In the event of default in payment by the clients, the statutory default interest applicable to business transactions shall apply. In the event of default in payment, the clients undertake to reimburse webist for any dunning and collection charges incurred to the extent they are necessary for the appropriate legal prosecution. This includes, in any case, a lump sum of EUR 40 as compensation for collection costs pursuant to sec. 458 Austrian Commercial Code (UGB). The assertion of further rights and claims remains unaffected.
In the event of payment default by the clients, webist may declare all services and partial services rendered under other contracts concluded with the clients immediately due and payable. Furthermore, webist is not obliged to provide further services until the outstanding amount has been paid (right of retention). The obligation to pay remuneration remains unaffected.
If payment in instalments has been agreed, webist reserves the right, in the event of non-timely payment of instalments or ancillary claims, to demand immediate payment of the entire outstanding debt (loss of date).
The clients are not entitled to offset their own claims against claims of webist, unless the clients’ claim has been expressly acknowledged in writing by webist or has been established by a court.
TITLE AND COPYRIGHT
All services provided by webist, including those from presentations (e.g. suggestions, ideas, concepts, (preliminary) drafts, etc.), including individual parts thereof, shall remain the property of webist, as shall the individual workpieces and original drafts, and may be reclaimed by webist at any time – in particular upon termination of the contractual relationship. By paying the remuneration, the clients acquire the right to use the services for the agreed purpose. Unless otherwise agreed, the clients may use the services exclusively in Austria. The acquisition of rights of use and exploitation to services of webist is in any case subject to full payment of the remuneration invoiced by webist for such services. If the clients use services of webist before payment, such use is based on a loan relationship that may be revoked at any time.
Any changes or modifications to services provided by webist, in particular further development thereof by the clients or by third parties working for the clients, shall only be permitted with the express consent of webist and – insofar as the services are protected by copyright – of the respective authors. Delivery of any so-called “open files” is expressly not part of the contract. webist is not obliged to hand them over.
The use of services provided by webist which goes beyond the originally agreed purpose and scope of use requires the consent of webist – irrespective of whether such services are protected by copyright. webist and the authors are entitled to separate reasonable remuneration for such use.
The use of services provided by webist or of advertising material and/or texts for which webist has prepared conceptual or design templates also requires the consent of webist after expiry of the contract, irrespective of whether such services are protected by copyright or not. For such use, webist shall be entitled to the following remuneration after expiry of the contract:
in the 1st year after the end of the contract: 100% of the remuneration agreed in the expired year;
in the 2nd year after the end of the contract: 50% of the remuneration agreed in the expired year;
in the 3rd year after the end of the contract: 25% of the remuneration agreed in the expired year;
from the 4th year after the end of the contract: no payment is due.
The clients shall be liable to webist for any unlawful use in an amount equal to twice the appropriate remuneration for such use.
CREDIT LINE / LABELLING
webist is entitled to refer to webist and, where applicable, to the author on all deliverables (in particular texts, any advertising materials, etc.). The clients are not entitled to any remuneration for this.
webist is entitled to refer to the existing or former business relationship with the clients (reference note) on its own advertising media and in particular on its website, using the clients’ name and company logo. The clients may withdraw their consent to this at any time in writing.
WARRANTY
The clients must notify webist of any defects without delay, at the latest within eight days of delivery/performance by webist, and in the case of hidden defects within eight days of their discovery, in writing and with a description of the defect; otherwise the service shall be deemed approved. In this case, the assertion of warranty and damages claims as well as the right to challenge the contract on the basis of error due to defects shall be excluded.
In the event of a justified and timely notice of defects, the clients shall have the right to improvement or replacement of the delivery/performance by webist. webist will remedy the defects within a reasonable period of time, whereby the clients shall enable webist to take all measures necessary for the investigation and rectification of the defects. webist is entitled to refuse improvement if such improvement is impossible or would involve a disproportionate effort for webist. In this case, the clients shall be entitled to the statutory rights of rescission or price reduction. In the event of improvement, the clients shall be responsible for transferring the defective (physical) item at their own expense.
It is also the responsibility of the clients to examine the service for its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. webist is only obliged to carry out a rough check of the legal admissibility. In the event of slight negligence or after fulfilment of any duty to warn, webist shall not be liable to the clients for the legal admissibility of content if such content was specified or approved by the clients.
The warranty period is six months from delivery/performance. The right of recourse against webist pursuant to sec. 933b (1) AGBG expires one year after delivery/performance. The clients are not entitled to withhold payments due to defects. The presumption rule of sec. 924 AGBG is excluded.
LIABILITY AND PRODUCT LIABILITY
In cases of slight negligence, liability on the part of webist and its employees, additional contractors or other vicarious agents for property damage or financial loss suffered by the clients is excluded. This applies regardless of whether such damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of an obligation, culpa in contrahendo, due to defective or incomplete performance. The injured party must prove the existence of gross negligence. To the extent that liability on the part of webist is excluded or limited, this also applies to the personal liability of its employees, additional contractors and other vicarious agents.
webist shall not be liable for claims asserted against the clients on the basis of services rendered by webist (e.g. social media content) if webist has fulfilled its duty to warn or if such duty was not recognisable to it, whereby slight negligence is not detrimental. In particular, webist shall not be liable for legal costs, the clients’ own attorney fees or costs of publication of judgments, nor for any claims for damages or other claims by third parties. The clients shall indemnify and hold webist harmless in this respect.
The clients’ claims for damages shall expire six months after becoming aware of the damage; in any case, however, three years after the act of breach by webist. Claims for damages shall be limited to the net order value.
DATA PROCESSING
Information on data processing can be found in webist’s privacy policy, which can be accessed here.
ELECTRONIC INVOICING
webist is entitled to send invoices to the clients in electronic form.
TERM OF THE CONTRACT
Fixed-term contracts concluded between the clients and webist end, unless otherwise agreed, upon completion of the project. If the contract is concluded for an indefinite period without a fixed end date, it shall remain in force until terminated.
EXPIRY OF UNUSED HOURS
Supervision or retainer hours not used shall expire if they are not used within a period of three months from the time they become available. Carrying forward unused hours to a later period or reimbursement of the corresponding remuneration is excluded. This provision applies regardless of the reasons for non-use of the hours.
NOTICE PERIOD
The contract may be terminated in writing with effect from the end of any month. If termination is declared by the clients, a notice period of three months from the date of submission of the notice must be observed.
PREMATURE TERMINATION
webist is entitled to terminate the contract with immediate effect for good cause. Good cause shall exist in particular if the performance of the service becomes impossible for reasons attributable to the clients or is further delayed despite a 14-day grace period; the clients continue to breach material obligations under this contract, such as payment of an invoiced amount or duties to cooperate, despite a written warning and a 14-day grace period; there are justified concerns regarding the clients’ creditworthiness and, at webist’s request, the clients neither make advance payments nor provide security prior to webist’s performance;
The clients are entitled to terminate the contract for good cause without granting a grace period. Good cause shall exist in particular if webist continues to breach material provisions of this contract and fails to remedy the breach despite a written warning and a reasonable grace period of at least 14 days.
PLACE OF PERFORMANCE / JURISDICTION / APPLICABLE LAW / CONTRACT LANGUAGE
The place of performance is webist’s registered office. In the case of shipment, the risk shall pass to the clients as soon as webist has handed over the goods to the carrier chosen by webist.
The exclusive jurisdiction of the competent court in Vienna is agreed for all disputes arising out of or in connection with contracts concluded between webist and the clients – including disputes regarding the existence or non-existence of a contract.
Exclusively Austrian law shall apply, to the exclusion of the conflict-of-law rules of private international law (e.g. IPRG, Rome I Regulation, etc.) and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The contract language is English.
FINAL PROVISIONS
Amendments or additions to a contract must be made in writing. This also applies to any amendment of the written form requirement.
If individual provisions of these GTC are or become invalid, this shall not affect the validity of the remaining provisions and of the contracts concluded on the basis of these GTC. The invalid provision shall be replaced by a valid provision which comes closest to its meaning and economic purpose.
The headings in these GTC are for convenience only and shall not be used for interpretation of the GTC.
The assignment of individual rights and obligations under the contract concluded between webist and the clients, including these GTC, shall only be permitted with the express written consent of the other contracting party.
You can download the General Terms and Conditions (GTC - DE) here.