1. Subject matter of the contract
Promotion-Tools AG (hereinafter referred to as "Promotion-Tools") is a full-service agency for live brand experience and field marketing, primarily offering below-the-line marketing services. Promotion-Tools has the necessary experience, know-how, contacts and access to a pool of suitable field agents, a professional infrastructure and a network of partners and suppliers to position and market various products and services.
2. Scope of application
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 applicable in the offer, in the order placement or order confirmation. They also apply to the present and future business relations between the parties, in particular to all other services provided by Promotion-Tools at a later date in connection with the placing of the order. Any provisions deviating from the General Terms and Conditions must be agreed in writing.
If the written agreement and the General Terms and Conditions contain provisions that deviate from each other, the provisions of the written agreement shall take precedence over 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 shall apply. The present general terms and conditions of Promotion-Tools AG apply exclusively to contractual relationships with Promotion-Tools. If these general terms and conditions are in conflict with the terms and conditions of the customer who enters into a business relationship with Promotion-Tools, the general terms and conditions of Promotion-Tools shall take precedence, even if Promotion-Tools does not expressly object to those of the customer.
The validity and availability of the general terms and conditions of Promotion-Tools is expressly referred to when the offer is made or in the cost estimate. By accepting the offer or the written order confirmation, the customer accepts the validity of the general terms and conditions of Promotion-Tools and also its precedence over any deviating general terms and conditions of the customer.
3. Preliminary work and order placement
Promotion-Tools does not provide any preliminary services free of charge. Promotion-Tools charges a fee for the preparation of proposals for the planned activities, including cost calculations. Promotion-Tools is obliged to inform the customer in writing of the amount of the presentation fee upon acceptance of a presentation order. Third-party costs and travel expenses are not included in the fee and will be invoiced separately in accordance with prior agreement.
The definitive order is placed upon receipt of the written order confirmation or by mutual signing of a contract.
Promotion-Tools is available from Monday to Friday, from 09.00 to 18.00. Outside of these hours, contact is possible by prior arrangement.
4. Contract conclusion
The quotation from Promotion-Tools is free of charge, unless otherwise agreed.
The quotation is binding for the period specified by Promotion-Tools in the quotation. If Promotion-Tools does not specify a deadline, Promotion-Tools is bound by the offer for 30 days from the date of the offer.
The contract between Promotion-Tools and the customer is usually concluded by written confirmation of the offer by the customer.
5. Competitionexclusion
An exclusion of competition only applies if it has been agreed in writing.
6. Representation/performance of third parties
Promotion-Tools is entitled to call in third parties to fulfill the contract.
Insofar as Promotion-Tools acts on behalf of and for the account of the customer, it is only liable for the careful selection and instruction of third parties.
7. Execution of the order
The customer order is executed by Promotion-Tools in accordance with the agreed order requirements. Promotion-Tools shall provide the services in accordance with the schedule agreed with the client. Should it be necessary during the assignment to provide services other than those agreed, this must be agreed with Promotion-Tools in advance. Conversely, Promotion-Tools shall inform the client regularly about the performance of the services and shall immediately notify the client of any circumstances that jeopardize the contractual performance.
In the event of a delay in the performance by Promotion-Tools, the client shall grant a reasonable grace period.
Promotion-Tools may, for important reasons to be communicated to the client, assign the performance of an order to other persons than originally agreed before or during the execution of the order. When deploying employees, Promotion-Tools guarantees the faithful and careful selection (professional and personal suitability) and instruction.
Promotion-Tools reserves the right not to execute the order for good cause (e.g. imminent inability to pay, insolvency of the client) or in the event of non-payment as agreed, whereby this does not release the client from his payment obligation.
8. Obligation of the client to cooperate
The client shall provide the contractor with all support that is required or reasonably necessary for the provision of the services.
The client shall provide the contractor with all documents, materials, hardware, data carriers, etc. that are necessary or useful for the provision of the services, regardless of whether these are specified in detail in the contract.
The client shall continuously check the contractual fulfillment. The customer shall notify Promotion-Tools immediately in writing of any objections and defects. Otherwise, fulfillment in accordance with the contract shall be assumed.
9. Remuneration and budget guarantee
The type of remuneration for the services is based on the contract that is concluded when the offer is confirmed. The remuneration for the services provided by Promotion-Tools is calculated by drawing up a budget or on a time and material basis. The corresponding rates (hourly or daily rates) are communicated to the customer. All costs and fees calculated, offered or promised by Promotion-Tools are net, excluding statutory VAT and excluding any other costs such as taxes, duties, fees, customs, packaging, freight, insurance, special permits, certifications and the like. Such costs are to be borne by the customer and are therefore invoiced additionally by Promotion-Tools. If the parties have agreed on remuneration based on time spent, Promotion-Tools is free to invoice the services rendered periodically.
In the context of the agreed order, all budget overruns and extra costs shall be borne by Promotion-Tools, unless the customer has been informed in advance of the budget overrun and has not approved it. Any change to the order in terms of content or scope requires the preparation of a new budget and its approval by the customer.
Promotion-Tools also reserves the right to adjust its services and the prices of its services at any time. The changes will be communicated to the client in an appropriate manner. If Promotion-Tools increases the prices in such a way that they lead to a higher total charge for the customer or if Promotion-Tools significantly changes a service purchased by the customer to the detriment of the customer, the customer may terminate the affected service prematurely until the change comes into effect at that time without any financial consequences. If the client fails to do so, it accepts the changes. Price adjustments as a result of a change in tax rates (e.g. increase in VAT) shall not be deemed to be price increases and shall not entitle the Client to terminate the contract.
10. Payment / prohibition of payment
On confirmation of the order, the customer will receive a partial invoice (usually amounting to 75% of the budgeted amount), which is due for payment within 10 days.
On completion of the order, Promotion-Tools will issue a final invoice for the total project costs less the partial invoice paid. The final invoice must be paid by bank transfer within 30 days of receipt. The remuneration of Promotion-Tools is due within 30 days of invoicing.
The client is responsible for the timely payment of the remuneration within the payment period. In the event of late payment, the customer shall automatically owe default interest of 5% and a reminder fee of CHF 50.00 per reminder. If Promotion-Tools has doubts regarding the contractual compliance with the terms of payment or if the collection of receivables becomes more difficult, Promotion-Tools can also demand an advance payment or security or terminate the order prematurely.
11. Cancellation of an order / Cancellation of confirmed orders
If an order is canceled before its contractual fulfillment or its scope is significantly reduced, the customer must fully compensate Promotion-Tools for the work performed, the personnel booked and the expenses incurred.
If an ongoing order is canceled or its scope is significantly reduced, the customer must fully compensate Promotion-Tools for the work performed, the personnel booked and the expenses incurred.
12. Warehouse rental and liquidation
For short storage periods of up to approx. 2 months, which are required as part of an ongoing project, the space is invoiced on a time and material basis and expires automatically at the end of the project. For long-term rentals of more than two months, a contractual relationship is established with a six-month notice period (can be terminated at the end of any month, with the exception of December). The last 6 months' rent will be charged at cost or, if higher, on the basis of the average inventory of the last 12 months.
13. Intellectual property / copyrights and rights of use
The client and Promotion-Tools are entitled to use all documentation recorded during the campaign, including images and film material, for their own advertising and presentation purposes after consultation and approval. These may include registered trademarks and products of the client.
The client expressly acknowledges the intellectual property of Promotion-Tools, in particular the copyright to all suggestions and ideas expressed in the context of presentations and concepts. All rights to such results of the services, namely ownership rights, proprietary rights, intellectual property rights (in particular, but not limited to, inventions, know-how, copyrights and other intangible or industrial property rights, regardless of whether these are registered or not), including the right to register property rights and the right to modify and transfer property rights to third parties, remain exclusively with Promotion-Tools. The customer is not permitted to use such rights (in particular intellectual property rights and copyrights) beyond the duration of the contractual cooperation without the written consent of Promotion-Tools. In the event of unlawful use, the customer shall owe Promotion-Tools a contractual penalty of CHF 100,000 per infringement. The right to claim further damages remains reserved. Payment of the contractual penalty does not invalidate the prohibition of unlawful use and its removal can still be demanded.
Promotion-Tools can only be obliged to hand over documents and data relating to the work if the transfer of the associated rights to the customer has been compensated or agreed in advance. The documents and data provided by the customer must be handed over to the customer at any time upon request.
14. Confidentiality
Promotion-Tools acts as an agent for its customers and protects their interests to the best of its knowledge and belief.
Promotion-Tools and its customers mutually undertake to treat all sensitive information and documents of which they become aware in the course of their business relationship as confidential. As far as possible, data worthy of protection will be marked accordingly in correspondence. Advertising materials created by Promotion-Tools that have been released for public use are not considered to be sensitive information.
The confidentiality obligation already exists at the offer stage and also applies for the duration of an individual order and for the following 5 years after the end of the order.
For data protection reasons, Promotion-Tools does not disclose any personal information about its field agents to its customers.
15. Notice of defects and warranty
Insofar as Promotion-Tools has concluded contracts for work with the customer for the creation of a concept or creative design work, notices of defects and other complaints due to obvious defects must be made immediately, at the latest within a preclusion period of 7 days after receipt of the work or parts thereof, with simultaneous handover of the items. The same shall apply to hidden defects, with the proviso that the preclusive period of 7 days shall only commence upon discovery of the defect. The warranty shall in any case end 1 year after delivery.
Features subject to subjective assessment in artistic design, such as colors and dimensions, cannot be the subject of a notice of defects unless the customer has given exact instructions in this regard. The tolerance limits customary in the industry apply to material-related color and dimensional variations. Promotion-Tools assumes no legal warranty for the documents or materials provided by the customer or third parties commissioned by the customer.
In the event of a notice of defects, Promotion-Tools is granted the priority right to rectification or replacement delivery. If the rectification or replacement delivery is not possible within a reasonable period of time or if it fails, the customer has the choice between the right to a reduction in payment or rescission of the contract in the event of significant defects. The liability for defects of Promotion-Tools expires if the customer undertakes modifications or repair work on the delivered items himself or through third parties without the prior consent of Promotion-Tools. Promotion-Tools accepts no liability for services of third parties for whose procurement it has merely acted as an intermediary.
When deploying employees, Promotion-Tools guarantees the faithful and careful selection (professional and personal suitability) and instruction.
16. Liability
The liability of Promotion-Tools AG for unfaithful and careless execution of the order is limited to the careless selection and instruction of the employees deployed and, moreover, only applies in the case of slight negligence.
Promotion-Tools is only liable for loss, damage and deletion of materials and documents caused intentionally or through gross negligence, which were made available to it by the customer for a promotional assignment or handed over for safekeeping. For this and for other third-party damage caused by Promotion-Tools employees (including field agents) during a project assignment, there is liability insurance with cover of CHF 3,000,000.
If Promotion-Tools AG is unable to provide the service through its own fault, the customer may demand compensation. This is limited to the remuneration for the part of the service that could not be provided through the client's own fault. Other and additional claims for damages by the client are excluded in cases of delayed delivery or non-performance, in particular due to force majeure, epidemics, war, illness, strike or lockout. This shall not apply in cases of liability based on intent or gross negligence.
A further liability, regardless of the legal grounds, including for slight negligence, is excluded. This applies both to own fault or the fault of governing bodies and the fault of vicarious agents (including field agents).
To the extent permitted by law, liability for property damage and financial loss is limited to a total of CHF 100,000.00 per contract. Liability for loss of profit is excluded in all cases to the extent permitted by law.
17. Enticement of employees by the customer
The persons deployed by Promotion-Tools may not be employed on a temporary basis or as permanent or freelance employees or commissioned as subcontractors or placed with third parties for a period of 12 months after the end of the assignment with the client. An exception applies if written consent has been obtained from Promotion-Tools. The severance payments in this case are:
for a field agent: CHF 4,000.00
for a permanent position: 20% of the annual salary ("cost to company").
In the event of a breach of these provisions, Promotion-Tools is entitled to a contractual penalty of CHF 100,000.00 per breach. The right to claim further damages remains reserved. Payment of the contractual penalty does not invalidate the ban and its removal can still be demanded.
18. Change AGB
The version of the general terms and conditions published on the Promotion-Tools website at the time of order confirmation is authoritative. However, Promotion-Tools reserves the right to amend the general terms and conditions at any time. In the case of ongoing orders, Promotion-Tools will inform the contractors concerned of the changes to the general terms and conditions in an appropriate manner. In the case of customers who are not notified of the changes, the original terms and conditions continue to apply. However, if the notified changes are detrimental to the client, the client may terminate the contract prematurely within 30 days of notification of the change without financial consequences. If the client fails to do so, it accepts the changes.
19. Place of jurisdiction and choice of law
The place of jurisdiction for all disputes arising from the business relationship with Promotion-Tools is Schlieren. However, Promotion-Tools is also entitled to sue the customer at his place of residence or business.
All disputes arising from the business relationship with Promotion-Tools are subject exclusively to Swiss law, excluding its conflict of law rules and all international conventions (e.g. UN Convention on Contracts for the International Sale of Goods).
20. Severability clause
Should a provision in these terms and conditions or a provision within the framework of other agreements between Promotion-Tools and the customer be or become invalid, this shall not affect the validity of all other provisions and agreements. The parties are obliged to replace an invalid or unenforceable provision with a valid or enforceable provision that realizes the purpose of the invalid or unenforceable provision as far as possible.