GENERAL TERMS AND CONDITIONS (T&C)
OF DRASTIK GMBH, 8048 ZURICH
Zurich, February 2020 (V2)
This version replaces the T&C of September 2017 (V1).
Scope of Application
- The following terms and conditions govern the relationship between the Client (hereinafter referred to as the client) and DRASTIK GmbH (hereinafter referred to as DRASTIK). They shall be considered an integral part of an order.
- These Terms and Conditions shall also apply to future transactions between the contracting parties, even if no further reference is made to them in the future when the contract is concluded.
- Provisions which conflict with the T&C shall only apply if they have been agreed in writing. If other provisions have been agreed upon, the DRASTIK T&C shall apply additionally to any provisions not included therein.
Conclusion of Contract
- The conclusion of the contract shall come about through the acceptance of DRASTIK’s offer by the client. Acceptance shall preferably be made in writing (e.g. via email).
- Furthermore, the contract shall come into effect when the client makes use of the services offered by DRASTIK or purchases or uses DRASTIK products (such as licences).
- The initial meeting and the offer are free of charge and not binding for both parties.
- The offer contains all planned services and becomes subject matter of the contract by the written confirmation of the client. All subsequent changes (author’s corrections, see section 8) as well as services not requested and listed in the quotation shall be deemed to be amendments to the contract and shall be invoiced on a time and material basis at DRASTIK’s standard hourly rates.
- DRASTIK’s participation in a pitch is based on the principle of a transparent, fair and efficient selection procedure and is guided by the LSA and IAB guidelines.
- The client shall provide a precise and comprehensive written briefing as well as all materials required for the pitch such as corporate guidelines, assets etc. in a timely manner.
- The client shall name a contact person for queries, all representatives involved in the decision-making process including their function as well as the other agencies invited to the pitch.
- DRASTIK shall be granted an appropriate period of time for the elaboration of the ideas after receiving the briefing. In the interest of all agencies involved in the pitch, each pitch participant must be given the same amount of time.
- DRASTIK is entitled to an appropriate fee for participation in a pitch.
- If DRASTIK does not receive an order after the presentation, all services and associated rights, in particular the presentation documents and their content, remain with DRASTIK. The client shall not be entitled in any form whatsoever to make further use of them and must return or delete all documents immediately.
- DRASTIK shall be entitled to use all services provided for the presentation which are not used in any other way. The transfer of DRASTIK’s presentation documents to third parties, as well as their publication or distribution, is not permitted without express consent and appropriate remuneration (buyout, see section 13).
- Unless otherwise stated in the offer, all prices are net in Swiss francs (CHF) and exclusive of any applicable value added tax (VAT) and other applicable taxes and duties.
- DRASTIK reserves the right to change prices at any time.
Unless otherwise agreed, DRASTIK’s claim to remuneration shall commence for each individual service provided.
- Unless otherwise agreed, DRASTIK’s quotations as amended from time to time shall be authoritative for the remuneration of services.
- In the case of express work (orders which cannot be delivered by DRASTIK during normal office hours due to tight timing on the part of the client), there shall be a surcharge of 25% for night work and 50% for work on Saturdays, Sundays and public holidays.
- Ancillary services and third-party costs (e.g. colour printouts, courier services, extraordinary shipping costs, photos, reproductions, typesetting, printing, licences, insurance and other additional services) shall be paid for by the client, unless these are expressly listed and compensated for in the valid quotation. The client remains the full debtor of the invoice even if he has the invoices issued to a third party address.
- Travel times, travel costs, expenses and, if applicable, overnight accommodation costs incurred in connection with services which DRASTIK is unable to provide at its place of business shall be invoiced separately. Travelling times shall be considered working hours.
Terms of Payment
- Unless otherwise agreed, DRASTIK’s invoices shall be issued immediately after delivery and are due for payment net without any deductions within 20 days.
- In the event of late payment, which occurs on the 21st day after the invoice date, DRASTIK shall charge the client a default interest of 5%, and from the 2nd reminder onwards a processing fee of CHF 50.00 for each reminder.
- Claims of the client may only be offset with the written consent of DRASTIK. DRASTIK’s invoices shall be due for payment, even if the client claims defects.
- DRASTIK shall retain all rights to the delivered goods and data until payment has been made in full (in particular the right of use, see section 11.4).
- If an order extends over a longer period of time or requires DRASTIK to make substantial financial advance payments, then appropriate payments on account shall be made. The following shall be deemed reasonable: 50% upon placement of the order, 50% after completion of the order.
Involvement of Third Parties
- DRASTIK is entitled to call in third parties for the fulfilment of the contract and is liable for their careful selection and instruction.
- In the event that other parties are called in for the performance of the contract, DRASTIK shall not be responsible for any delayed, incorrect or incomplete project work, provided that the fault is due to gross negligence on the part of third parties.
- Author’s corrections are additional services caused by the client and not offered.
The following is considered to be author’s corrections:
– faulty data or documents and templates or those not supplied in accordance with the offer,
– changes after acceptance of a service or partial service and
– any changes made after 2 correction cycles.
- The client is responsible for postponements of deadlines caused by author’s corrections.
- Author’s corrections shall be shown separately in the invoice and shall be charged at DRASTIK’s usual hourly rates, unless otherwise agreed.
- If the postponement of deadlines caused by the client results in work at DRASTIK at night, on Saturdays, Sundays and public holidays, the surcharges set out in 5.4 shall apply.
- Author’s corrections are additional services caused by the client and not offered.
Reduction, Cancellation or Early Termination of the Order
- If an order placed by the client is reduced, cancelled or terminated prematurely for good cause (e.g. product is not launched), the client shall be obliged to indemnify DRASTIK against all liabilities already incurred and to reimburse DRASTIK for all losses resulting from the reduction, cancellation or premature termination. The client shall be granted a non-exclusive right of use to the assets created and completed for important reasons up to the time of reduction, cancellation or premature dissolution.
- The expenses incurred by DRASTIK up to the time of reduction, cancellation or premature dissolution for important reasons shall be remunerated on a percentage basis in accordance with the progress of DRASTIK’s work as per 9.2.1. and 9.2.2. The basis for determining the work performed shall be the hours of work calculated by DRASTIK for the order at the time of reduction, cancellation or premature termination, but not a specific result.
9.2.1. In the case of performance of services up to and including 50% of the estimated working hours, 50% of the order total shall be charged.
9.2.2. In case of performance of services > 50% of the estimated working hours, 100% of the order total will be charged.
- If the client reduces, cancels or prematurely dissolves an order without good cause (e.g. notification of defects without granting the right to rectification) DRASTIK shall be entitled to 100% of the contractually approved remuneration and shall be entitled to use the work performed to date for other purposes. The client shall not be granted any right of use to the assets created up to the time of reduction, cancellation or premature termination without good cause. If the client nevertheless wishes to obtain a right of use, DRASTIK may offer this voluntarily as a buyout in accordance with section 13.
- Services rendered, such as third-party costs and travel expenses within the meaning of 5.5 and 5.6, shall be paid in full, regardless of the reason for the reduction, cancellation or premature dissolution.
- DRASTIK may reduce, cancel or prematurely terminate a placed order for important reasons, in particular if the client does not fulfill his obligations according to section 14. Section 13 shall apply accordingly to the resulting rights of use and remuneration.
- All services provided by DRASTIK, including the copyright notice, are protected as personal intellectual creations. DRASTIK may dispose of these rights in accordance with the provisions of the Swiss Federal Copyright and Related Rights Act (URG).
- All works (concepts, sketches, drafts, realised projects, etc.) created within the scope of a commission may not be altered either in the original or in reproduction without the consent of DRASTIK. It follows from this principle, among other things, that the client is not entitled to make changes to the works in question, in particular to individual design elements, without the consent of DRASTIK.
- Any imitation, even of parts of the works, is not permitted. A breach of this provision shall entitle DRASTIK to demand a contractual penalty of 200% of the agreed remuneration.
Proposals made by the client or his further cooperation shall not constitute a co-author’s right and shall have no influence on the amount of the remuneration.
- DRASTIK shall be entitled to be named as the author on the completed work. Any violation of the right to be named shall entitle DRASTIK to claim damages. Without proof of higher damages, the compensation shall be 100% of the agreed remuneration.
- Every order placed with DRASTIK is a service contract aimed at granting usage rights to the work.
- DRASTIK shall transfer to the client the usage rights required for the respective purpose. Unless otherwise agreed, only the simple usage right shall be transferred in each case.
- DRASTIK grants the client a usage right for websites, the content of which is limited to the medium of the internet. The use of the order-related results of concept, design and programming in other media requires an express written buyout agreement between DRASTIK and the client. The remuneration for this buyout shall be based on section 13.
- The usage rights shall not pass to the client until the remuneration has been paid in full.
- The transfer of granted usage rights to third parties requires the consent of DRASTIK.
- DRASTIK shall at all times be entitled to information about the scope of use.
- The simple usage right granted within the scope of the contract excludes any use outside the purpose of the contract and the surrender of raw data. The parties may, however, agree to use the data outside the scope of the contract and to release raw data in accordance with the provisions of section 13.
- The client shall inform DRASTIK in advance of any use outside the contractual purpose, obtain written permission from DRASTIK and compensate DRASTIK accordingly for any additional use. The provisions of section 13 shall apply.
- If copyrighted performances of actors, artists, speakers, etc., which are subject to time or other restrictions (buyouts) are used in productions, it shall be the client’s responsibility to independently arrange for an extension in good time after expiry. DRASTIK assumes no liability for this. sts, speakers, etc., which are subject to time or other restrictions (buyouts) are used in productions, it shall be the client’s responsibility to independently arrange for an extension in good time after expiry. DRASTIK assumes no liability for this.
Retention of Ownership
- Rights of use are granted for designs and final versions, but no rights of ownership are transferred.
- The dispatch of drafts and final versions is at the risk and expense of the client. In the event of damage or loss, the client shall reimburse the costs necessary to restore the originals.
- DRASTIK shall not be obliged to return original files (“open data”, in particular layouts, source files, code, etc.) to the client unless this has been expressly agreed upon or is part of an order.
- If DRASTIK makes these original files available to the client, they may only be changed or passed on to third parties with prior permission. Without prior written agreement, the remuneration guidelines in accordance with section 10 and 13 shall apply.
- If the client wishes the release of original files (“open data”, in particular layouts, source files, code etc.), or a use of the delivered assets beyond the agreement, this must be separately agreed and remunerated in the context of a buyout.
- The remuneration is based on the conventions of the media industry and the desired use (region, medium, duration of use, publication of original files) with the following distribution keys, which are cumulated according to use:
13.2.1. Usage for additional regions per year: 1:3:5:7.
1 = basic fee x 1 for buyout Switzerland for 1 year
3 = basic fee x 3 for buyout for the German-speaking countries (Germany, Austria and Switzerland) for 1 year
5 = basic fee x 5 for Europe for 1 year
7 = basic fee x 7 for international use for 1 year
13.2.2. Usage for additional media per year: 2:5.
2 = basic fee x 2 for buyout of 1 additional media for 1 year
5 = basic fee x 5 for buyout all media for 1 year
13.2.3. Usage for longer periods (>1 Jahr): 2:3:10
2 = basic fee x 2 for buyout 2 years
3 = basic fee x 3 for buyout 3 years
10 = basic fee x 10 for buyout for an unlimited period of time
13.2.4. Release of original files for further use: 1:2:5
1 = basic fee x 1 for buyout original files for 1 year
2 = basic fee x 2 for buyout original files for 3 years
5 = basic fee x 5 for unlimited buyout original files
13.2.5. If copyrighted performances of actors, artists, speakers, etc., which are subject to time or other restrictions (buyouts) are used in productions, it shall be the client’s responsibility to independently arrange for an extension in good time after expiry. DRASTIK assumes no liability for this.
- DRASTIK’s performance of the order is subject to the condition and assumption that the client owns all rights to the material delivered and that the content is lawful. DRASTIK must be informed in advance of any restrictions (limited usage rights etc.).
- If the client has undertaken to provide DRASTIK with materials (texts, images, graphics, logos, music and video sequences, computer programs, drawings, database content, etc.) in the course of the execution of the contract, the client must immediately make these available to DRASTIK in a digital format. This material shall be made available on a Mac-compatible data carrier (CD, DVD, USB stick or similar) or via download link, shall be clearly allocated and labelled, and shall contain all elements in a form suitable for immediate processing. If a conversion of the material provided by the client is necessary, the client shall bear the costs incurred for this. The client shall ensure that DRASTIK obtains the rights necessary to use such materials. The inclusion of the aforementioned materials is solely at the risk of the client.
- When creating websites, the client shall provide DRASTIK with the content to be included in the website. Unless otherwise agreed, the content to be provided by the client includes, in particular, all texts, images, graphics, logos, music and video sequences to be integrated.
- The client shall support DRASTIK in the performance of the contractually defined services within the framework of a duty to cooperate. This includes in particular:
14.4.1. The timely provision of information, data material, hardware and software, insofar as the client’s cooperation duties require this.
14.4.2. The delivery of correct data in the formats agreed between the client and DRASTIK. If the data received cannot be used without modification (e.g. image retouching), DRASTIK shall invoice the client for the expenses incurred for this at the usual hourly rates.
14.4.3. Adequate, precise, comprehensive feedback on (partial) services which clearly defines further steps for DRASTIK. If the client’s feedback is not complete, subsequent requests for changes pursuant to section 8 shall be treated as author’s corrections and shall be remunerated.
14.4.4. Compliance with deadlines and timely release of (partial) services. If the client’s delay causes express work (night, Saturday, Sunday and holiday work), these working hours shall be remunerated with the surcharges listed in section 5.4.
14.4.5. Early notification of any delays. Prior to any delay that is to be feared, the client must notify DRASTIK immediately, stating the reason and duration. DRASTIK shall not be responsible for the timely performance of services in the event of delays caused by the client.
Domain Registration for Websites
- DRASTIK will procure and reserve the requested domain in the name and on account of the client, provided that the requested domain has not yet been allocated.
- DRASTIK shall not be obliged to check the admissibility of the domain, for example in terms of trademark or name rights. The client declares that he will comply with the relevant legal provisions and in particular that he will not violate anybody’s trademark rights and will indemnify and hold DRASTIK harmless in this respect.
Internet Hosting for Websites
- DRASTIK uses the services of third parties for internet hosting. The general terms and conditions of the respective provider shall apply.
- DRASTIK does not assume any responsibility for hosting. In the event of problems with the hosting, the client shall contact the provider directly. If the client appoints DRASTIK for this purpose, DRASTIK will charge for the time and effort involved at its standard hourly rates.
- The “production proof” stands for form, design and content, but not for paper, image quality and color accuracy and is created before the data is transferred to a producer. Unless otherwise agreed, it will be sent by e-mail and must be approved by the client in writing (e-mail or letter).
- DRASTIK shall not be liable for errors overlooked by the client.
- Changes made after approval by the client will be charged to the client in full. This shall include, among other things, renewed expenses for author corrections, proofs, errands, etc.
- DRASTIK requires a “printing proof” (PDF or proof) from the producer for printed products and compares this with the “production proof”. In some cases DRASTIK can forward this to the client for signature.
- If the client waives their printing proof approval, DRASTIK will not be responsible for any errors in the production of the printed material.
- Acceptance must take place within the agreed project timing or, unless otherwise agreed, at the latest within 5 working days after delivery and may not be refused for creative or artistic reasons. Within the scope of the order there is freedom of design.
- If the client refuses acceptance, he must notify DRASTIK in writing without delay, but at the latest within the acceptance period of 5 working days after delivery, of the points of criticism with an exact description.
- If DRASTIK receives neither a declaration of acceptance nor points of criticism within the aforementioned period, the work shall be deemed to have been accepted.
- DRASTIK shall be provided with five flawless copies of all work produced, including reprints (in the case of valuable pieces, a reasonable number).
- DRASTIK is entitled to mention clients and individual projects as references on its website, social media and other communication channels (print, PR etc.) as well as in client presentations. This includes, among other things, the name and logo of the client, details of the service, the period of the service, assets created (graphics, videos, websites etc. including presentation of interim results) and the corresponding link to the client or project.
- Unless otherwise agreed at the beginning of the contract, the right to use client and projects as references is unlimited in time.
- If using client and projects as references is in conflict with agreed confidentiality obligations (confidentiality for the duration of the contract, in particular the initial publication of the work by the client), DRASTIK shall be entitled to mention the reference immediately after publication of the work by the client.
- DRASTIK shall only be liable to the client for wilful intent and gross negligence, regardless of the legal grounds.
- DRASTIK shall submit the designed assets or documents to the client so that the client can review the factual information contained therein. If the client approves the drafts, the client shall assume sole liability for the accuracy of the factual information contained therein.
- The client shall be fully liable to third parties for any infringement of rights by content, statements, and for any violation of license, copyright or otherwise protected rights in the services provided.
- DRASTIK’s performance of the order is subject to the condition and assumption that the client owns all rights to the material delivered by the client and that the content is lawful.
- DRASTIK’s liability for breaches of copyright and other rights in relation to third parties is expressly excluded.
- DRASTIK shall have the right to require the client to provide evidence of copyright and other rights and of the legality of the content.
- Third party claims of any kind and any resulting legal and consequential costs shall be solely at the expense of the client and the client agrees to indemnify DRASTK in full in all cases.
- DRASTIK shall not be liable for the patent, design, copyright and trademark protection or registration of the ideas, suggestions, proposals, concepts, drafts, etc. delivered. In this regard, the client shall make the appropriate (e.g. trademark or patent law) clarifications at its own expense.
- Both parties undertake to keep confidential all information, i.e. experience and technical knowledge (know-how) as well as business and trade secrets, which have been or will be made available to each other in the form of oral and written information, technical or non-technical data, drawings, other documents and records as well as in physical form and which are at any time brought to the knowledge of both parties or come into their possession.
- The parties undertake to pass on all related information only to such employees to the extent necessary for the execution of the order. Employees, staff and third parties called in for the performance of the order shall be equally obliged to maintain secrecy, unless they are already required to do so on the basis of their contractual relationship with one of the parties.
- The parties also undertake not to pass on information received from each other to third parties themselves or through persons verifiably authorised by the other without the prior consent of the other.
- The confidentiality obligation shall continue to apply after the termination of the contract.
- The right to reference (section 21) remains unaffected and may only be restricted for important reasons.
- Deviating conditions must be agreed in writing.
- The invalidity of one or more of the regulations of these terms and conditions shall not affect the validity of the remaining regulations. Rather, the void regulations shall be replaced by that which comes closest to the intended purpose.
- The applicable law is Swiss law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- Zurich is the place of jurisdiction.