GENERAL TERMS AND CONDITIONS: ALLGEMEINE GESCHÄFTSBEDINGUNGEN
Say it right
Amalienstraße 68/2, 1130
1. SCOPE OF APPLICATION
1.1 Olivia Scheibelreiter / Say it right, with its business address in 1130 Vienna, Austria, Amalienstraße 68/2 (hereinafter referred to as "Say it right") is a copywriting and content marketing agency based in Vienna and provides services such as website copywriting, content writing, content translation, editing, proofreading and SEO (i.e. search engine optimisation) copywriting.
1.2 Say it right provides its services exclusively on the basis of these general terms and conditions (as amended from time to time, hereinafter referred to as the "General Terms and Conditions"). The General Terms and Conditions apply to the entire business and/or legal relationship between Say it right and its business partners (including, without limitation, other marketing agencies, freelancers, customers, etc.).
1.3 The General Terms and Conditions may be amended and/or updated from time to time. The version valid and available at the time of the conclusion of the contract or agreement between Say it right and its business partner applies in each case. Deviations from the applicable General Terms and Conditions shall only be effective if expressly confirmed in writing by Say it right.
1.4 Say it right will notify its business partners about any amendments or updates of the General Terms and Conditions and such amendments and/or updates will be deemed to have been agreed and accepted by the business partner if he/she does not object in writing within 14 calendar days. The notication will include the relevant amendments and/or updates as well as an indication that non-objection results in the amendments and/or updates becoming effective.
1.5 Say it right does not accept any terms and conditions of its business partners, unless otherwise expressly agreed in writing. This applies also if Say it right is familiar with any such terms and conditions. Say it right expressly objects to any third party's general terms and conditions; no further objection by Say it right is required.
1.6 Should any provisions of the General Terms and Conditions, for whatever reason, be invalid, unenforceable and/or void, the remaining provisions of these General Terms and Conditions and any individual agreements between Say it right and its relevant business partner remain unaffected. The invalid, unenforceable and/or void provision shall be deemed replaced by such valid, enforceable and effective provision that comes closest to the economic purpose and intent of the invalid, unenforceable and/or void provision.
1.7 All individual agreements and contracts entered into between Say it right and its business partners take precedence over these General Terms and Conditions vis-à-vis the relevant business partner in the event of any contradictions.
1.8 Nothing in the General Terms and Conditions or any individual agreements entered into by Say it right shall be construed, read or interpreted in such a way that it results in an obligation to violate or potentially violate any applicable laws or regulations, e.g., data protection laws. In such events, Clause 1.6 shall apply mutatis mutandis.
2. PROTECTION OF IDEAS AND CONCEPTS
The following applies if Say it right is instructed by a business partner to develop a concept even prior to entering into a specific, individual agreement:
2.1 By inviting or instructing Say it right to prepare concepts and/or ideas, e.g., in the course of a pitch, and acceptance of the invitation by Say it right, Say it right and its potential business partner (conclusively) enter into a contractual relationship ("pitching agreement"). This pitching agreement is also based on the General Terms and Conditions.
2.2 The potential business partner acknowledges that Say it right incurs costs in the course of any preliminary services, including for an initial analysis, communication with the potential business partner and the preparation of a tailored offer, although the potential business partner has not yet assumed any obligations on its end. However, in the ordinary course of business, Say it right will not charge its business partners for the preparation of (tailored) offers, unless any business partner has requested such offer without the prospect of actually hiring and/or commissioning the Agency or the Agency has informed its business partner thereof in advance (e.g., in case of particularly time-consuming offers).
2.3 Any concepts developed by Say it right are subject to the protection of the copyright law in its linguistic and graphic parts, to the extent these reach the threshold of originality (in terms of copyright laws). Potential business partners are not permitted to use or edit such protected concepts or parts of it without the prior consent of Say it right. Any rights of Say it right under applicable copyright laws remain unaffected.
2.4 Concepts prepared by Say it right may also contain ideas and/or proposals and/or initiatives and/or drafts ("ideas") which do not reach the threshold of originality and therefore might not be protected under copyright laws. By their very nature, such ideas constitute the beginning of every creative process and can be defined as the spark that ignites everything produced later and thus as the origin of marketing or communication strategies. Therefore, ideas which are tailormade, peculiar and/or characteristic, including (without limitation) slogans, advertising texts, graphics and illustrations, professionally prepared and keyword optimised texts and other material, etc. are regarded as an idea within the meaning of this agreement, even if they do not reach the threshold of originality, are protected and may only be used and/or commercially utilised with the prior written consent of Say it right.
2.5 If any (potential) business partner is of the opinion that Say it right has presented to him/her ideas which he/she has already come up with earlier, the (potential) business partner must notify Say it right of this within 14 days of the day of the presentation and/or first transmission, citing certificates or evidence allowing for a chronological allocation. In all other cases, such ideas are deemed to have been developed by Say it right and these General Terms and Conditions apply.
3. SCOPE OF SERVICES, PROCESSING, ONGOING OBLIGATIONS TO COOPERATE, DATA MANAGEMENT
3.1 The scope of the services to be provided by Say it right shall be individually determined within an individual agreement (e.g., service agreement) to be entered into between Say it right and its business partners or, prior to the conclusion of such service agreement, be determined by mutual consultations between such parties. Subsequent changes to the products provided by Say it right require Say it right's written conrmation before being published. Within the framework of services agreed between Say it right and its business partners, Say it right shall enjoy creative freedom.
3.2 All services and products provided by Say it right to its business partner (in particular including preliminary drafts, texts, wireframes, templates, posts etc.) shall be duly analysed and scrutinised by the relevant business partner and approved by the business partner within seven working days upon receipt. If the business partner does not respond within this period, the relevant product and/or service is deemed to have been approved by the respective business partner.
3.3 Furthermore, each business partner of Say it right must scrutinise the information and documents (photos, logos etc.) provided to Say it right for any copyrights, trademark rights, labelling rights or other rights of third parties ("rights clearing") to ensure that the documents are free of rights of third parties and can therefore be used for the intended purpose. Say it right is not liable towards its business partners for any infringement of such third-party rights by documents made available to it by its business partners. If a claim is made against Say it right by a third party due to such an infringement of rights, the respective business partner who has provided such document or information to Say it right, shall indemnify Say it right and shall compensate Say it right for all disadvantages incurred by it as a result of a third-party claim, in particular the costs of appropriate legal representation. The business partner undertakes to support Say it right in defending itself against any third-party claims and shall provide Say it right with all documents and information necessary and/or useful for this purpose without further request and free of charge.
3.4 Each business partner of Say it right must provide Say it right with all information, records or other documents that Say it right requires or reasonably demands for its activities and services without undue delay upon Say it right’s request.
3.5 If any business partner of Say it right does not use, utilise or publish (as the case may be) the products prepared by Say it right within a reasonable period of time and/or as agreed with Say it right, Say it right is under no obligation to update these products free of charge and Say it right is not liable for deciencies due to any circumstances that have changed in the meantime.
3.6 All materials produced by Say it right for its business partners shall be properly stored by Say it right without separate remuneration for a period of not less than one year upon provision to the relevant business partner and shall be provided to the relevant business partner on request during this period. Any costs of compiling data or the aforementioned materials, of dispatch, packaging, storage beyond the agreed period, as well as insurance shall be borne by the relevant business partner.
3.7 With regard to any advertising platforms used by business partners of Say it right, each business partner must inform himself/herself and keep himself/herself up to date about rights and obligations towards such advertising platforms and any applicable policies. Say it right has no obligation to inform or update its business partners on such matters. Any voluntary information provided by Say it right (including newsletters), are only made available voluntarily and Say it right accepts no liability for their accuracy and completeness.
3.8 Documents that are no longer required, such as drafts of unrealised projects or similar, may be destroyed by Say it right immediately.
3.9 Say it right and its business partners shall treat their cooperation and the information provided in connection therewith as condential, unless their disclosure or publication is permitted within the General Terms and Conditions, any individual agreement (e.g., service agreement) or obviously intended and permitted.
4. DEADLINES, DATES AND TIMES
4.1 Unless expressly agreed otherwise, deadlines and expected dates for delivery are only indicative and non-binding.
4.2 If the performance and/or delivery of any services or products by Say it right is delayed for reasons beyond its control and/or beyond its sphere of influence, such as force majeure, the relevant obligations of Say it right shall be suspended for the duration of such events or reasons and respective deadlines shall be extended accordingly. Say it right and its business partners shall act in good faith in agreeing on a common solution.
4.3 If Say it right is in default, its business partner may only withdraw from the contract after having granted Say it right a reasonable grace period of at least 14 days in writing and this grace period has expired. Claims for damages on the part of Say it right's business partners for non-performance or delay are excluded, except in cases of intent or gross negligence; the burden of proof, in any event, lies with Say it right's business partner.
5.1 The remuneration for Say it right’s services shall be agreed bilaterally between Say it right and its business partners. Such remuneration shall be paid by the relevant business partner at the times, in the manner and in the amount as agreed with Say it right, but in any event free of any deductions. All fees and remuneration stated by Say it right is net of any applicable VAT and disbursements unless expressly stated otherwise.
5.2 All remuneration must be paid in advance. Say it right is under no obligation to commence work or to provide any services prior to full and irrevocable receipt of the respective remuneration. In case of any ongoing (e.g., monthly) services, the relevant remuneration shall be paid monthly in advance.
5.3 If no specific remuneration is agreed between Say it right and its business partners for any work, Say it right may claim appropriate remuneration in line with standard market practice calculated on an hourly basis or any standard hourly rate agreed between Say it right and its business partners separately.
5.4 All services provided by Say it right that do not fall within the agreed scope of services and the agreed fees shall be remunerated separately. Say it right shall be reimbursed by its business partners for all necessary cash expenses and disbursements incurred by it.
5.5 If any of Say it right's business partners alters or cancels work commissioned without involving Say it right, Say it right's claims for remuneration remain unaected, unless Say it right has grossly negligently or intentionally breached its agreed obligations. The provisions of section 1168 AGBG are hereby excluded. Furthermore, Say it right shall be indemnied in relation to any third-party claims, including claims of contractors of Say it right. Any concepts, drafts and other documents shall be returned to Say it right immediately.
5.6 Services and products delivered by Say it right (including any intellectual property rights) in any event remain the sole property of Say it right until full and irrevocable payment of the respective remuneration and fullment of all ancillary liabilities or obligations by its relevant business partner (retention of title).
5.7 In the event of late payment and/or payment default by its business partners, Say it right may, in its discretion, declare all payment obligations of the relevant business partner under all agreements entered into with such business partner to be due for immediate payment (Terminsverlust). This shall also apply if payment in instalments has been agreed and any instalments are not paid fully on time. Furthermore, Say it right is not obliged to continue to provide its services until the outstanding amount has been paid in full (right of retention). In the event of late payment, Say it right may demand payment of statutory default interest, unless otherwise agreed or modied between Say it right and its client.
5.8 Any set-off rights against claims and/or rights of Say it right is excluded.
5.9 Say it right may adequately increase its fees if its expenses increase signicantly due to external circumstances.
5.10 Say it right may charge a surcharge for urgent work on weekends or public holidays if such work is performed by Say it right at such times for reasons on the part of its business partner. In addition, Say it right may charge additional fees if disproportionately high time expenditures are required for communication with and inquiries by its business partner; in such an event, Say it right shall inform its business partner in advance if necessary and unless specically agreed individually.
5.11 Say it right's fees do not include costs and fees for content production or communication platforms used to publish products delivered by Say it right; these external costs and fees shall be borne by respective business partner of Say it right or, as the case may be, be reimbursed to Say it right, whereby Say it right's claims in relation to its own remuneration shall remain unaffected.
5.12 It is claried that the fees payable to Say it right serve purely as a remuneration for Say it right's services. Thus, costs or other fees incurred vis-à-vis any advertising platforms and/or advertising spaces (e.g., websites, blogging platforms etc.) used by any business partner or by Say it right on behalf of any business partner (e.g., to advertise any product, post or otherwise publish any services or content prepared by Say it right) are not included. In this respect, the respective business partner of Say it right assures to pay such remunerations, costs or other fees to the relevant third parties (or, if applicable, reimburse Say it right) in full and on time.
5.13 In the event of late payment of any remuneration by Say it right’s business partner, Say it right is entitled to demand compensation for reminder fees, debt collection and recovery costs, court fees and/or lawyers’ fees in accordance with applicable laws and any individual agreements between Say it right and its respective business partner.
INVOLVEMENT OF THIRD PARTIES
Say it right may, at its sole discretion, either perform and full the agreed services and obligations personally or instruct and/or rely on third parties (e.g. freelancers, independent contractors) to full the services owed by it. In the latter case, Say it right is liable for the conduct of the relevant third parties (hereinafter referred to as the "Freelancers") in accordance with the statutory provisions on the liability for vicarious agents (Erüllungsgehilfenhaung, section 1313a of the Austrian General Civil Code, ABGB).
INTELLECTUAL PROPERTY AND COPYRIGHT
7.1 All services provided by Say it right, including those arising from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, final artwork, concepts, slides etc.), including individual parts thereof, shall remain the property or intellectual property of Say it right, as shall the individual workpieces and design originals, and may be reclaimed by Say it right at any time. This applies in particular (without limitation) upon termination of the individual agreement with the relevant business partner. By paying its fee, the relevant business partner (exclusively) acquires the right of use for the agreed purpose to the extent required to make use of the agreed services of Say it right or as individually agreed with Say it right . In the absence of any agreement to the contrary, however, the business partner may use the services of Say it right exclusively in Austria or within the previously agreed framework (e.g., for international clients). The acquisition of rights of use and utilisation of Say it right's services shall in any case be subject to full payment of the fees payable to and charged by Say it right for such services. If the relevant business partner already uses the services or products of Say it right prior to this point in time, the express consent of Say it right is required and, unless otherwise agreed, is based on a loan relationship that can be revoked by Say it right any time at their sole discretion.
7.2 Business partners of Say it right may generally change or edit services and/or products provided by Say it right, unless expressly stated otherwise by Say it right. Copyrights of any third parties remain unaected. However, if any business partner changes edits or otherwise alters products or services of Say it right, such business partner must ensure that it is not stated or implied that the (edited, changed or otherwise altered) product or services has been provided by Say it right. Say it right, however, may demand that its name and/or logo is stated together with the (edited, changed or otherwise altered) product or services if it sees fit.
7.3 Say it right is not obliged to hand over any files.
7.4 For the utilisation of services and products provided by Say it right that go beyond what was initially agreed on between the parties, the express consent of Say it right is required, regardless of whether this service or product is protected by copyright. Say it right and any relevant author/originator shall be entitled to additional, appropriate remuneration.
7.5 For the utilisation of services and products provided by Say it right or of content material for which Say it right has prepared conceptual or design templates, the consent of Say it right is also required after expiry of the individual (service) agreement based on which such services or products were provided by Say it right. This applies irrespective of whether or not the respective service or product is protected by copyright.
7.6 Business partners and clients of Say it right are liable towards Say it right for unauthorised utilisation of products and services of Say it right. In case of violations of the above articles, Say it right is entitled to claim fees double the amount of the fees appropriate for the relevant utilisation (as a contractual fine, Vertragsstrafe).
7.7 The rights of utilisation relating to released and paid services and products provided by third parties that Say it right has integrated into its contractual services (e.g., photographs, illustrations, music, as well as the ancillary copyrights of third parties, e.g., of actors, speakers, models) may be transferred by Say it right to its business partner to the extent necessary for the implementation of the intended utilisation of the services and products in the agreed territory and to the extent such rights have, in turn, been transferred to Say it right itself by the third party concerned. Should these rights be improperly limited in individual cases in terms of time, territory, content and types of use and should the transfer of rights not be possible in the aforementioned scope, Say it right shall, to the best of its knowledge, inform the respective business partner, that it does not guarantee the transfer of rights from any third parties.
7.8 The transfer and/or licensing of rights of utilisation from the client and/or business partner of Say it right to any third party shall require the prior written consent of Say it right.
8. LABELLING AND SELF-PROMOTION
8.1 Say it right may use services and products rendered and/or provided by it for purposes of self-promotion. For example, Say it right might display such services and products on its website and/or social media channels and might publish the cooperation with the respective client (including the client's logo and its trademarks, if applicable) as a reference.
8.2 Say it right may label its products and services, by adding its logo or other indications in an appropriate manner. Unless Say it right provides its express consent, such labels or indications must not be removed by the client or business partner who uses or utilises the relevant products or services.
9. RIGHTS OF WARRANTY
9.1 To the extent not agreed otherwise and/or otherwise set forth hereinaer, the statutory provisions on warranty right (Gewährleistungsrecht) apply.
9.2 The responsibility to scrutinise any services and products provided or rendered by Say it right for their legal admissibility (including, without limitation, with regard to competition, trademark, copyright and administrative law) lies with the client or business partner of Say it right. Say it right, therefore, shall not be liable for the legal admissibility of content in the event of slight negligence and/or aer fullling any (contractual) duty, if applicable, to warn or notify the client.
9.3 Whether or not any product or service of Say it right is defective (mangelhaft) shall be determined at the time Say it right makes such product or service available to its client or business partner. As a result, any defect in a service or product provided by Say it right shall not be deemed to exist if the relevant client uses and/or publishes it late and its usability or utility is impaired due to circumstances that have changed in the meantime.
9.4 Say it right shall full its obligations using its best endeavours. However, no specific commercial achievements on behalf of the relevant client or business partner of Say it right is guaranteed (unless explicitly agreed).
10. LIABILITY AND PRODUCT LIABILITY
10.1 Say it right is not liable for events, damages or other circumstances that occur outside its sphere of influence (außerhalb ihrer Einussspähre) or result from such circumstances.
10.2 In cases of slight negligence, any liability of Say it right and its vicarious agents shall be excluded, regardless of whether the damage is direct or indirect, loss of prot or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The burden of proof for the existence of gross negligence lies with the respective other party.
10.3 Any liability of Say it right for claims (including liability for recourse), which are brought or made against a client of Say it right relating to any service provided by Say it right, is expressly excluded. In particular, Say it right shall not be liable for legal costs, the relevant client's legal fees or costs of publication of judgements or for any claims for damages or other claims by third parties; the respective client shall indemnify and hold Say it right harmless in this respect.
10.4 In cases of only slight negligence (leichte Fahrlässigkeit), any liability of Say it right is excluded entirely. The burden of proof that a higher degree of negligence exists lies with the Client.
10.5 Any claims for damages brought against Say it right by any client or business partner are limited to the amount of the net fees payable to Say it right for its services rendered to such client or business partner.
10.6 Each client and business partner of Say it right is under an obligation to minimise any damages. Should the client/business partner become aware of any (possible) damage during the term cooperation with Say it right (or aerwards, to the extent any products or services rendered by Say it right are still utilised), the client/business partner must inform Say it right accordingly and, by mutual agreement and to the best of its knowledge, strive to keep any damage to an absolute minimum, failing which Say it right shall not be liable for any avoidable damages.
11.1 Any business partners of Say it right are prohibited from:
(a) hiring (or attempting to hire or otherwise engaging) any employees of or freelancers associated with Say it right or in any other way interfering with the relationship between Say it right and its employees and freelancers;
(b) encouraging any customer, supplier, service provider or other business partners of Say it right to discontinue, reduce or adversely alter such business partner’s relationship with Say it right or in any other way interfering with its relationship with Say it right; and
(c) hiring or commissioning any competing service provider with respect to the services to be rendered to such business partner by Say it right,
in each case for the duration of the business relationship between Say it right and its respective business partner and any longer period of time agreed individually between Say it right and its respective business partner.
12. GOVERNING LAW AND JURISDICTION
12.1 All contractual and non-contractual obligations between Say it right and its clients and business partners shall be governed by Austrian law (excluding its conict of laws-rules and the CISG), unless otherwise agreed.
12.2 The place of jurisdiction shall be the competent court at Say it right's registered office.
13. DATA PROTECTION
13.1 Personal or company-related data of any clients and business partners of Say it right, e.g., name/company name, profession, date of birth, company registration number, powers of representation, contact persons, business address and other addresses, telephone number, fax number, e-mail address, bank details, credit card details, VAT number, may be used by Say it right for the purpose of customer care as well as for advertising purposes as well as for the purpose of referring to the existing or former business relationship with the relevant client. For such purposes, the relevant data may be determined, stored and processed automatically. Each Client and business partner of Say it right agrees that electronic mail may be sent to her/him for advertising purposes until such consent is expressly revoked. This consent can be revoked at any time in writing by e-mail, fax or letter to firstname.lastname@example.org.
13.2 Information and data relating to clients and business partners of Say it right may be automatically generated and stored. When Say it right’s web pages are visited, a web server may automatically save data (e.g., IP address of the visitor's device, the addresses of the sub-pages visited, details of the browser used) and the date and time.
13.3 Say it right does not use the relevant data and does not normally pass them on but reserves the right to have the relevant data viewed or passed on to third parties by Say it right or any consultants or trusted third parties if there is a violation of the law to its detriment or if it encroaches on its legal sphere.
13.4 Data protection in accordance with Artt 13 and 14 GDPR
(a) Say it right processes personal data, which might fall in the following categories:
(iii) Date of birth,
(iv) Company register number,
(v) Powers of representation,
(vi) Contact person,
(vii) Business address and other addresses of the customer,
(viii) telephone number, fax number, e-mail address,
(ix) bank details, credit card details, and
(x) tax-ID number.
- (b) Website visitors and (potential) clients and business partners (voluntarily) provide this data to Say it right and Say it right processes this data, based on their consent, for the following purposes:
(i) support of the customer, as well as
(ii) for its own advertising purposes, for example for sending oers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of referring to the existing or former business relationship with the customer.
(c) The (potential) client or business partner may revoke this consent at any time. A revocation has the consequence that Say it right may no longer process the data concerned for the above-mentioned purposes from this point in time. For a revocation please contact: email@example.com.
13.5 (Potential) clients and business partners of Say it right shall be entitled to the rights of information, correction, deletion, restriction, data transferability and objection with regard to their individual data.
13.6 If (potential) clients and business partners of Say it right suspect that the processing of their data violates data protection law or their data protection rights have otherwise been violated, they may complain to the responsible supervisory authority. In Austria this supervisory authority is the Austrian Data Protection Authority (Datenschutzbehörde).
Last update: September 2022.