General Terms and Conditions
(as of 01 August 2017)
1. Object of contract
Promotion-Tools AG (hereinafter "Promotion-Tools"), as a full-service agency for live brand experience and field marketing, primarily offers services in below-the-line marketing. For the positioning and marketing of different products and services, Promotion-Tools possesses the necessary experience and required know-how as well as contacts and access to a pool of suitable field agents, a professional infrastructure and a network of partners and suppliers.
These General Terms and Conditions are based on Swiss law and govern all relationships between Promotion-Tools and its customers. These General Terms and Conditions are applicable and binding if they are declared as applicable in an offer, a job order or an order confirmation. They are also applicable in present and future business relationships between parties, in particular in all further services from Promotion-Tools that are later performed in connection with a job order. Exceptions to the provisions of the General Terms and Conditions must be agreed to in writing.
If regulations in the written agreement and General Terms and Conditions are inconsistent with each other, the provisions of the written agreement in principle usurp those of the General Terms and Conditions. However, if the provisions of the written agreement are unclear or incomplete, the provisions of the General Terms and Conditions take precedence. For contractual relationships with Promotion-Tools, these General Terms and Conditions of Promotion-Tools AG exclusively apply. If these General Terms and Conditions contradict conditions of a customer that has entered into a business relationship with Promotion-Tools AG, the General Terms and Conditions of Promotion-Tools AG take precedence, even if these GTCs of Promotion-Tools do not expressly contradict those of the customer.
The applicability and accessibility of the General Terms and Conditions of Promotion-Tools are expressly referred to in the quotation or cost estimate. With the acceptance of the quotation or written order confirmation, the customer accepts the applicability of the General Terms and Conditions of Promotion-Tools as well as its priority over any differing general terms and conditions of the customer.
3. Advance services and job order
Promotion-Tools does not render any advance services free-of-charge. Promotion-Tools charges a fee for the development of proposals on planned activities, including cost calculations. With the acceptance of a presentation job, Promotion-Tools is obligated to notify the customer in writing of the amount of the presentation fee. The costs of third parties and travel expenses are not included in the fee and are invoiced separately as per previous arrangement.
The job order is made definitive with the receipt of a written order confirmation or through the mutual signing of a contract.
Promotion-Tools can be reached from Monday to Friday between 09.00 and 18.00. Contact outside of these times is possible by previous arrangement.
4. Contract termination
The quotation from Promotion-Tools is made free-of-charge, unless otherwise agreed to.
The quotation is binding for the time period stated by Promotion-Tools in the quotation. If Promotion-Tools does not state a time period, Promotion-Tools is bound to the quotation for 30 days following the date of the quotation.
As a rule, the contract between Promotion-Tools and the customer comes into existence through the written confirmation of the quotation by the customer.
5. Exclusion of competition
An exclusion of competition is applicable only if agreed to in writing.
6. Third-party representation/service
Promotion-Tools is entitled to engage third parties in the fulfillment of a contract.
So long as Promotion-Tools is acting in the name of the customer, including on the invoice, it is liable only for the careful selection and instruction of third parties.
7. Conducting the job
Promotion-Tools carries out the customer job according to the agreed-to job specifications. Promotion-Tools performs the services according to the schedule agreed upon with the client. If it becomes necessary during the assignment to render services other than those agreed to, this must be arranged in advance with Promotion-Tools. Likewise, Promotion-Tools will regularly update the client on the rendering of services and immediately report all circumstances that may threaten the fulfillment of the contract.
In the case of a delay by Promotion-Tools, the client will grant a reasonable extension.
Before or during the carrying out of a job, Promotion-Tools can assign, on important grounds that must be reported to the client, its implementation to persons other than those originally agreed upon. Promotion-Tools ensures in good faith the careful selection (in terms of expertise and personal suitability) and instruction of workers.
Promotion-Tools reserves the right to not conduct a job for good cause (e.g. impending insolvency or bankruptcy of the client) or for payment not in accordance with the agreement, whereby this does not relieve the client from its obligation of payment.
8. Duty of cooperation of the client
The client shall provide the contractor all support that is necessary or reasonably necessary for performance of the services.
The client shall provide the contractor with all documents, materials, hardware, data media, etc. that are necessary or helpful for performance of the services, regardless of whether these are individually specified in the contract or not.
The client verifies the proper fulfillment of the contract on-going. The client promptly notifies Promotion-Tools in writing of any objections or defects. Otherwise, it will be assumed that the contract is being fulfilled properly.
9. Payment and budget guarantee
The type of payment for the services is in accordance with the contract, which comes into existence through confirmation of the quotation. The payment for services rendered by Promotion-Tools is calculated through the establishment of a budget or according to the effort spent. The customer is notified of the corresponding rate (hourly or daily). All calculated, quoted or expected invoiced costs and fees from Promotion-Tools are understood to be net costs excluding legally mandated value-added tax and excluding any other costs such as taxes, levies, fees, duties, packaging, freight, insurance, special permits, notarizations or similar. Such costs are the responsibility of the client and are therefore additionally billed by Promotion-Tools. Provided that the parties have agreed to payment according to the time spent, Promotion-Tools is free to periodically invoice the services rendered.
Promotion-Tools guarantees adherence to the agreed-to budget at the conclusion of the contract. In the framework of the agreed-to job, all budget overruns and extra costs are at the expense of Promotion-Tools, provided that the customer was not previously informed of and had approved the budget overrun. Every change to the job involving its content or scope requires the creation of a new budget and its subsequent approval by the customer.
Furthermore, Promotion-Tools reserves the option to modify its services and prices at any time. The client will be informed of any changes in an appropriate manner. If Promotion-Tools raises prices such that they lead to higher overall costs to the client, or if Promotion-Tools alters a service to the significant disadvantage of the client, the client may cancel the service in question early without financial consequence, up until the time that the change takes effect. Refraining from doing so directly implies that the client accepts the changes. Price adjustments resulting from changes in tax rates (e.g. increase in value added tax) do not qualify as price increases and do not entitle early termination.
10. Payment / invoice ban
For services with a budget of up to CHF 10,000, the customer receives an invoice after completion of the project, which must be paid within 30 days of receipt in cash or via bank transfer. Compensation of Promotion-Tools is due within 30 days of invoicing.
For services with a budget of more than CHF 10,000, the customer is sent an advance-payment invoice after confirmation of the order (normally 75% of budgeted amount), which must be paid within 10 days, at the latest by the start of the project. Promotion-Tools reserves the option to request an advance payment for smaller budgets as well.
After completion of the job, Promotion-Tools produces a final invoice for the entire project costs minus any advance payments made. The final invoice must be paid within 30 days following receipt in cash or via bank transfer. Compensation of Promotion-Tools is due within 30 days of invoicing.
Advance payments rendered for the annual budget and within framework contracts are calculated and balanced at the end of the campaign or the end of the calendar year.
The client is responsible for the on-time payment of compensation within the payment deadline. In the case of payment default, the client immediately owes 5% default interest and dunning fees of CHF 50.00 per reminder notice. If Promotion-Tools doubts the contractual compliance of the payment conditions or if the collection of claims becomes hindered, Promotion-Tools can require an advance payment or guarantee or cancel the job early.
The customer can claim offsetting only with uncontested or legally stipulated counterclaims. The client refuses its invoicing right with regard to all claims against Promotion-Tools.
11. Cancellation of a job / withdrawal of confirmed jobs
If a job is canceled prior to its contractual completion or if its scope is considerably reduced, the customer must compensate Promotion-Tools for all work performed and associated activities.
If booked personnel is canceled by the client up to 15 days before the start of work, 50% of the agreed personnel costs are due. If withdrawal is made at a later time, 100% of the agreed personnel costs are due.
Booked field agents are available to the customer during the time period specified in the activity confirmation and, within reason, can be assigned to other locations or for other activities.
12. Intellectual property, copyrights and rights of use
The client and Promotion-Tools are entitled to the unlimited use of all received documentation, including photo and film material, for its own promotion and presentation purposes. This can include registered brands and products of the client.
The customer expressly recognizes the intellectual property of Promotion-Tools, in particular the copyright of all suggestions and ideas mentioned in the framework of presentations and concepts. All rights to such outputs of services, in particular property rights, ownership rights, intellectual property rights (especially, but not exclusively, for inventions, know-how, copyrights and other intangible or commercial property rights, regardless of whether these have been registered or not), including the right of registration of property rights and the right of modification and further transfer of property rights to third parties, remain exclusively with Promotion-Tools. The use of such rights (in particular intellectual property rights and copyrights) beyond the duration of the contractual collaboration is not granted to the customer without the written approval of Promotion-Tools. In the case of illegal usage, the customer must pay Promotion-Tools a contractual penalty of CHF 100,000 per violation. The enforcement of further penalties is reserved. Payment of the contractual penalty does not rescind the ban on illegal usage, the cessation of which can still be demanded.
Promotion-Tools can become obligated to issue the documentation and data of the work only if the transfer of associated rights to the customer is compensated for or previously agreed to. Documentation and data supplied by the customer can be returned at any time upon request.
Promotion-Tools is contracted by and acts on the behalf of its customers, the interests of whom it protects to the best of its ability.
Promotion-Tools and its customers are obligated to confidentially handle all sensitive information and documentation that they receive from the other party in the framework of their business relationship. To the greatest extent possible, sensitive data shall be indicated accordingly in all written communication. Promotional material created by Promotion-Tools and released for public usage does not qualify as sensitive information.
The obligation of confidentiality exists starting at the quotation stage and applies for the duration of an individual job as well as for five years following the end of the job.
For reasons of data privacy, Promotion-Tools does not provide its customers with any personal information of its field agents.
14. Complaints and warranty
Provided that Promotion-Tools has completed the creation of a concept or creative design work for the customer work contract, complaints and other grievances based on obvious defects must be promptly resolved with the concurrent handover of items, no later than within a term of exclusion of seven days after receipt of the work or parts thereof. The same applies to hidden defects, with the stipulation that the term of exclusion of seven days begins at the time of determination of the defect. In all cases, the warranty ends one year after delivery.
Subjective judgment of underlying features of artistic design such as colors and dimensions cannot be the object of a complaint, so long as the customer did not provide any precise instructions for this purpose. For material-dependent color and dimension variations, industry-customary tolerances shall apply. Promotion-Tools does not provide any warranty for documentation or materials made available by the customer or third parties commissioned by it.
In the case of a complaint, Promotion-Tools shall grant the right to improvement or replacement. If improvement or replacement is not possible within a reasonable period of time or if it fails, the customer has the option with considerable defects to choose between the right to a payment reduction or a cancellation of the contract. The liability for defects by Promotion-Tools expires if the customer itself or a third party undertakes changes or repairs on the delivered items without the previous consent of Promotion-Tools. Promotion-Tools provides no warranty on the services of third parties, the acquisition of which it merely facilitated.
Promotion-Tools ensures in good faith the careful selection (in terms of expertise and personal suitability) and instruction of workers.
The liability of Promotion-Tools AG for unfaithful or inaccurate performance of a job is limited to the negligent selection or instruction of workers and furthermore takes effect only for minor negligence.
Promotion-Tools is liable only for deliberate losses or those caused by gross negligence, damages or the deletion of materials or documentation provided to it by the customer for a promotion operation or handed over for safekeeping. Liability insurance with a coverage of CHF 3,000,000 exists for this as well as other third-party damages caused by Promotion-Tools workers (including field agents) during a promotion operation.
If, due to its own fault, Promotion-Tools AG is incapable of the provision of services, the client can demand compensation. This is limited to payment for the portion of services that could not be rendered due to its own fault. Other additional claims by the client for damages in cases of delayed delivery or non-fulfillment, in particular due to force majeure, epidemic, war, illness, strike or lockout, are excluded. This does not apply in cases involving liability for intent or gross negligence.
Further liability, regardless of legal basis, is excluded, including for minor negligence. This applies for actual fault or institutional fault as well as fault from agents (including field agents).
Insofar as legally permitted, liability for property and financial damages is limited to a total of CHF 100,000 per contract. In any case, liability for loss of profits is excluded, so long as legally permitted.
16. Enticement of employees by the customer
Persons employed by Promotion-Tools may not be employed by the client for a period of 12 months following the end of the assignment, either temporarily or as permanent employees, freelancers or subcontractor or through third parties. An exception is possible only with the written approval of Promotion-Tools. Severance payments in the following cases amount to:
Field agent: CHF 4,000
Permanent position: 20% of annual salary (“cost to company”).
Violation of these provisions will result in a contractual penalty of CHF 100,000 per breach. The enforcement of further penalties is reserved. Payment of the contractual penalty does not rescind the prohibition, and cessation can still be demanded.
17. Changes to the GTCs
The authoritative version of the General Terms and Conditions is that which was published on the Promotion-Tools website at the time of order confirmation. However, Promotion-Tools reserves the right to modify the General Terms and Conditions at any time. In the case of in-progress jobs, Promotion-Tools will inform the affected clients in an appropriate manner about changes to the General Terms and Conditions. If a customer is not informed of the changes, the original General Terms and Conditions continue to apply. Conversely, if the notified changes are disadvantageous to the client, the client can cancel the contract early within 30 days after the notification without financial consequences. Refraining from doing so directly implies that the client accepts the changes.
18. Place of jurisdiction and choice of law
The place of jurisdiction for all disputes arising from the business relationship with Promotion-Tools is Zurich. However, Promotion-Tools is also entitled to sue the customer in its place of residence or business.
Swiss law is exclusively applicable in all disputes arising from the business relationship with Promotion-Tools, with the exception of any conflict-of-law rules as well as all international treaties (e.g. UN Sales Convention).
19. Severability clause
If a provision in these General Terms and Conditions or a provision in the framework of other agreements between Promotion-Tools and the customer is or will become ineffective, the effectiveness of all other provisions and agreements shall not be affected. The parties are obligated to replace an ineffective or unenforceable provision with an effective or enforceable provision that as far as possible achieves the purpose of the ineffective or unenforceable provision.