General Terms & Conditions
1.1. The company KARMA – Marketing, Branding, Advertising – hereinafter referred to as agency – delivers its services exclusively on the basis of these General Terms & Conditions. The Terms and Conditions apply also to all future business, even if no explicit reference is made to them.
1.2. Collateral agreements, reservations, changes or additions to these Terms and Conditions are only valid if made in written form.
1.3. Opposing or deviating terms from these terms and conditions will only be effective even with knowledge, if they are explicitly acknowledged in written form by the Agency.
2. Conclusion of Contract
2.1. Basis for the conclusion of the contract is the particular offer of the agency or the customer’s order, in which the scope of services, the range of activities and the reimbursement are mentioned. The offers of the Agency are 8 weeks free of charge and without obligation.
2.2. If the customer places an order, he is bound to it to the agency, two weeks after its placement. If the agency accepts the order, the contract is concluded. The assumption has to be made in writing or will be active, if the agency starts working on the contract.
3. Scope, Order Processing and Customer Responsibilities
3.1. The scope of the services to be provided is derived from the order of the customer, the service description or the information in the contract. Subsequent changes to the contract require the written form.
3.2. All services of the agency (in particular all preliminary drafts, sketches, final artwork, proofs, blueprints and color proofing) should be reviewed by the customer and approved within five days.
3.3. The Client will provide the Agency on time with all information and documents that are required for the provision of the service. He will inform the agency of all the processes, circumstances and factors, that are essential for the execution of the services, even if these circumstances become known during the execution of the order.
If works or projects have to be repeated by the Agency or will be delayed, due to incorrect, incomplete or subsequently changed specifications of the customer, the customer bears the costs.
4. External services / commissioning third parties
4.1. The Agency has the right in its sole discretion carry out the service itself, to make use of the provision of contractual services of third parties and/or to substitute such services.
4.2. The commissioning of contractors takes place in the name of the agency or in the name of the client, but in any case on account of the client.
4.3. The agency will select the contractors carefully and make sure that they have the necessary qualifications.
5.1. Timelines and time schedules have to be made and to be confirmed in written form. The agency strives to meet the agreed deadlines.
Failure to comply with the confirmed deadlines entitles the customer, however, only to assert his legal rights if he has granted the Agency a reasonable, at least however, 14 days lasting period. This period begins with the receipt of a written reminder to the agency.
5.2. After unsuccessful expiry of the grace period, the customer can withdraw from the contract. An obligation to provide compensation for damages exists only with intent or gross negligence of the Agency.
5.3. Unavoidable or unforeseeable events – in particular delays with agency suppliers – release the agency on compliance with the agreed delivery date. The same applies, if the customer delivers necessary informations or assets to execute the contract with delay. In this case, the agreed delivery date will be postponed to the extent of the delay.
6. Withdrawal from the contract
The Agency is entitled to rescind the contract if:
• the execution of the service is delayed or impossible, for reasons for which the client is responsible;
• existing and legitimate concerns about the creditworthiness of the client, and if the client is not willing to cash down an advance payment nor depositing a suitable security bevore the agenda starts working on the sealed contract.
7.1Unless otherwise agreed, the fee claim of the agency arises for each individual service, as soon as it has been provided. The Agency is entitled to demand advance payments to cover its expenses.
7.2. For the services provided and the compensation of Copyright and legal rights of use, the Agency shall receive, unless otherwise agreed, a fee in the amount of 20% of the overall advertising budget, settled by the agency. The fee is exclusive of VAT.
7.2.1 Unless otherwise stated, the rights of use for a job – and only this one – are included in the final bill. Any other reusing of design/concepts/od. like, is not permitted without re-monetary assessment of copyrights.
7.3. All services of the agency, which are not explicitly settled by the agreed fee, have to be paid separately. All arising out of pocket expenses of the agency have to be reimbursed by the client.
7.4. Estimates of the Agency are not binding. If it is anticipated that the actual cost wich are estimated by the agency in written form exceed by more than 10%, the agency will notify the client of the higher costs. The cost overrun shall be approved by the customer, if the customer does not contradicts the subject in written form within three days after this notice.
7.5. For all work delivered by the Agency, which is not put into execution by the client for whatever reason, the Agency deserves equitable remuneration. With the payment of this fee, the customer acquires no rights on this work. The fee has to be set in written form and agreed by both parties in advance. Unexecuted concepts, designs and documents have to be given back immediately to the agency.
8.1. The bills of the agency are due net cash without any deduction, payable within ten working days of receiving date of the bill. Any delay in payment will lead to interest in the amount of 12% pa. Delivered goods remain property of the agency, until full payment.
8.2. The Customer accepts to bear all costs and expenses that are associated with the fully collection of receivables.
8.3 In case of payment delay by the client, the agency is entitled to charge all other services and deliverables provided for the same client, immediately.
9.1. The agency is entitled to a reasonable fee, if she takes part of competitions and presentations. The fee has to be set in written form and agreed by both parties in advance.
9.2 If the competition or presentation leads to no contract between the client and the agency, all services, in particular the presentation documents and their contents, remain in the possession if the agency. The customer is not entitled to use these presentations or document in whatever form. Unexecuted concepts, designs and documents have to be given back immediately to the agency. The disclosure of presentation materials to third parties as well as their publication, copying, distribution or other use is not permitted without explicit acceptance by the Agency.
9.3. The customer has no right to use concepts or ideas, based on the competition or presentation, regardless of the fact if they reach the level of beeing protected by copyright or not. With the payment of the presentation fee, the customer acquires no exploitation and utilization rights to the presented concepts, ideas and presentations.
9.4. The Agency is entitled to use all the concepts, ideas and results of presentations elsewhere and otherwise, if they have not been executed by the client of a competition or presentation.
10. Property Right and Copyright
10.1 All the designs (artwork, presentations, concepts, design ideas, design proposals, etc.) of the agency are subject to copyright law.
10.1.1 The designs may not be used without the explicit agreement of the Agency, neither the original nor changed by reproduction.
10.1.2 Designs may not be photographed, reproduced or otherwise used as a basic concept or motif.
10.1.3 The client has a right simple of use. This includes the one-time use of the concept or design for the stated purpose, edition, geographical space, timeslot and media.
10.1.4. A transfer of exploitation rights to a third party requires a written agreement.
10.1.5 The clients gets the rights of use only after full payment of all outstanding invoice.
10.1.6 In violation of the agency copyrights and rights of use, a contractual penalty in the amount of 400 percent of the overall cost of the total advertising budget of the abused work product is agreed.
10.1.7 Although the exclusive right of use was granted, the Agency shall be entitled to use all works as references without restriction within the framework of self-promotion.
10.1.8. The Agency is entitled to apply their signature or logo on all advertising materials of the client, after explicit agreement with the client.
10.1.9 No usage rights are granted in principle on draft design versions. Unexecuted concepts, designs and documents have to be given back immediately to the agency.
10.2. Changes of work results of the Agency, as their further development by the client or by a third party working for the client are only permitted with the explicit agreement of the Agency (author).
10.3. For the use of the agency’s services or work products, which goes beyond the purpose and scope of use originally agreed, the agreement of the Agency is required.
10.4. After expiration or termination of the cooperation agreement, the agency may transfer all unrestricted rights of use on all work results of the full collaboration period in the sense of a singular buy-out, on the basis of a written agreement. The compensation amounts to 20% of the overall budget of all the results, for which the usage rights buyout has been agreed. The agreement has to be put down in written form and has to be signed by both parties.
11.1. The Agency is entitled to mention the author on all advertising media. the customer being entitled to a fee claim. The client is not entitled, to claim a fee for it.
11.2. The Agency is entitled to point on the existing business relationship with the customer on own advertising media and in particular on its website, with the clients name and company logo. The client has the right of cancellation at any time.
12. Warranty and Damages
12.1. The customer has to make any complaints immediately within three days after the performance by the Agency in written form and well founded. In the case of justified and complaints that arrive in the slot of three days after delivery, the customer has the right of repair or replacement by the Agency.
12.2. With justifiable complaint, the shortcomings will be fixed in an appropriate period. The client allows the agency all necessary measures who will assist analysis and fixing of the shortcoming. The Agency is entitled to refuse to improve the performance if it is impossible, or is connected with a disproportionate effort.
12.3. The burden of proof in accordance with § 924 Civil Code at the expense of the agency is excluded. The existence of the defect at the time of delivery, the time of discovery of the defect and the timeline of the complaint must be proven by the customer.
12.4. Damage claims by the customer, in particular due to default, impossibility of performance, positive breach, negligence in contracting, defective or incomplete performance, consequential damages or tort are excluded, unless they are based on intent or gross negligence of the Agency.
12.5. Any claim for compensation can only be made within six months of the awareness of the damage claimed.
12.6. Claims for damages are limited to the amount of the contract value, excluding taxes.
13.1. The Agency will perform the assigned tasks in accordance with the generally accepted principles of law an will inform the customer on time on pre-identifiable risks concerning copyrights or legal principles.
Any liability on part of the client in the event of an infringement, caused by an legally inadequate advertising campaign will be rejected, if the agency has fulfilled its duty to warn on time. In particular, the Agency shall not be liable for legal costs, attorney costs of the client or costs for the sentence release as well as for possible compensation claims or similar claims by third parties.
13.2. The Agency shall be liable under the statutory provisions only for damages insofar as intent or gross negligence can be proven. Liability for slight negligence is excluded. The existence of gross negligence must be proven by the client.
14. Applicable Law
The legal relationship between the client and the agency is based exclusively to Swiss law with the exclusion of international conflict of law rules. The provisions of the CISG do not apply.
15. Performance and Jurisdiction
15.1. Place of performance is the headquarter of the Agency.
15.2. As jurisdiction for all disputes arising directly between the agency and the client, the local and relevant court nearest to the agency headquarter will be agreed to.