GENERAL TERMS AND CONDITIONS (GTC) OF PRFACT AG
The following GTC are an integral part of the offer and regulate the partnership. Deviations from the GTC may be made by mutual agreement within the framework of the contract. The quotations are exclusive of VAT.
We provide our services and works exclusively on the basis of these terms and conditions. The conditions of the client or deviating agreements shall only apply if we have explicitly acknowledged them in writing.
Agreements shall only be valid in written form. PRfact AG has no obligation with respect to its own oral statements or oral statements of the customer. Deviations from these GTC and all other agreements between PRfact AG and its customers shall also require the written form.
Subject matter of the contract
The subject matter of contracts between PRfact AG and its customers shall only be services that PRfact AG has expressly undertaken to perform. PRfact AG shall not be liable for any particular result unless such result has been expressly stated in writing. The services to be performed shall be defined in the written offer or the order confirmation.
The agency shall issue invoices for its services either in the form of proportionate monthly invoices or project-related invoices. The invoices of the agency shall be payable in all cases within 30 days of the invoicing date.
As a basic principle, third-party invoices shall be issued in the name of the customer and forwarded for payment after verification by the agency. The terms of payment of the invoicing party shall apply. The agency shall ensure that third parties inform the agency without delay if the quotation is exceeded and send the agency and the client any changes and/or addenda, which must be confirmed immediately by the agency and client.
If, by agreement, third-party service invoices are issued to and paid by PRfact AG, the customer shall be invoiced on account for at least 75% of the budgeted third-party services no later than 30 days before the due date. At the end of a project/subproject, PRfact shall account for all costs incurred from third parties and produce a final invoice taking account of the payment on account and invoices due.
Unless otherwise agreed in writing, the remuneration must be paid without deduction within 30 days as follows: 50% at the time the order is placed and 50% at the time the work performed is delivered. If the client defaults in its payment, reminder fees (CHF 50) and default interest at the statutory rate shall be due.
If work is legitimately carried out in parts, the corresponding partial fee shall be due upon delivery of the part.
If in exceptional circumstances PRfact AG makes advance payment for third-party services, a fee of 15% of the net invoice value shall be charged.
As a general rule, the average CHF exchange rate quoted in the offer shall be applicable for invoicing in foreign currencies. Any currency differences between the offer and the actual invoice shall be borne by the customer.
Unless otherwise agreed, the agency’s own and third-party costs are included in the cost estimates, with a deviation of plus or minus 10%.
The customer undertakes to reimburse the agency for all expenses and expenditures incurred while carrying out the tasks entrusted to it. Unless otherwise regulated, the agency’s remuneration excludes the following in particular: third-party costs such as travel costs, hotel costs, translations, catering, document reproductions, photos, slides, data and sound media, printing and lithography costs, and third-party fees such as photographers, graphic designers, web programmers and other advertising, media or printing services. These costs shall be invoiced separately.
Concepts, designs and presentations must be paid after delivery in all cases.
PRfact AG does not create unpaid concepts, designs or presentations.
The client shall not have any rights whatsoever to concepts, designs or presentations in the context of offers or pitches, even if it pays a fee. If no contract is concluded on the basis of an offer, the customer must immediately destroy all concepts, designs and presentations. Offers that are not accepted within one month shall not be binding. PRfact AG may revoke its offer without further notice before acceptance by the customer.
Expenses invoiced separately must be paid by the client within 10 days.
The services and works delivered shall remain our property until full payment of all claims arising from the respective contract.
We have full legal rights of offset and retention. We reserve the right to assign any claims arising from the contract with the client without the consent of the client.
Contracting partners acting on behalf of third parties remain in contractual liability to us until we receive payment from their client.
If our creations or works are used without our agreement beyond the scope of use agreed in the contract, a subsequent fee shall be due.
Smaller additional orders up to a maximum of CHF 2,000 net do not require a submission of a cost estimation, but rather only the customer’s written order. The agency undertakes to use the information received only for the purpose of fulfilling its order in accordance with the offer/design.
PRfact AG does not assume any liability for contents and materials supplied by the customer, especially with regard to unauthorised image materials, music or film materials.
The instructions of the customer provided during execution of the contract are only of relevance insofar as they do not complicate or delay the execution of the order and do not entail additional outlay; PRfact AG does not assume any responsibility for instructions provided by the customer. The customer is obliged to indemnify PRfact AG if it is held responsible for this by third parties.
The customer is obliged to immediately check services and agreed partial services (e.g. rough concepts, detailed concepts, content plans). The acceptance is effected through written statement by the customer. Any shortcomings shall be described in detail in this written acceptance. In the event that a deadline has been agreed in writing and the company is late in its performance of services, the customer is required to firstly provide notice of the default in writing and then set an appropriate grace period.
Obligations of PRfact AG
PRfact AG is obliged to provide the services in accordance with the specification in the offer. PRfact AG is entitled to use third parties for the fulfilment of the order. Changes to the quoted services are only possible through written agreement. Additional outlay must be reimbursed by the customer. PRfact AG is not liable for any services to which it has not made a commitment. PRfact AG reserves the right to conclude contracts with third parties in the name and at the expense of the customer to the extent necessary to fulfil the order.
Obligations of the customer
The customer is obliged to provide PRfact AG with all necessary information relevant to the fulfilment of the order before the contract is concluded; it must also indicate in particular technical requirements as well as legal provisions that may be important for the fulfilment of the order. The customer is obliged to deliver the documents and materials specified in the offer in accordance with the agreement and within the deadlines. The customer is obliged to pay the remuneration specified in the offer in accordance with the agreement and within the deadlines. If the customer defaults on payment, the performance of a service or obligations of cooperation, PRfact AG reserves the right to discontinue its services without further notice. The customer is obliged to release PRfact AG from any liability that it has incurred as part of the fulfilment of the order.
Duration and termination
These GTC shall automatically apply from the moment the customer places an order.
A period of notice of three months shall apply. The notice of termination must be sent in writing at the end of any month. The customer is aware that the agency reserves and provides personnel and infrastructure to perform the services on which this agreement is based. If the customer terminates the cooperation without observing the three-month period of notice, the termination shall be deemed untimely and the customer shall be liable to pay the agency a contractual penalty of 25% of the total fees of the previous 12 months (or, in the case of working relationships lasting less than a year, 25% of the expected annual fee). The right to assert further damages remains reserved.
If an offer has been signed, it can be terminated no earlier than at the end of the defined duration.
Acquisition of rights and intellectual property
The customer has the exclusive right, without limitation as to temporal, quantitative, spatial (Switzerland) and factual matters to freely use the services created by the agency and implemented at the request of the customer (in accordance with the agreed plan), subject to the indispensable personal rights of the author.
All rights (copyright and other) to the agency’s services shall remain property of the agency. Upon settlement of invoices submitted by the agency, the customer shall have usage rights for the duration of the partnership. The transfer of these rights to third parties or associated companies as well as multiple uses (e.g. for another product, promotion, website, platform or by another business) shall require the express consent of PRfact AG and shall be subject to remuneration.
Our services, creations and works shall only be used to the agreed extent for the agreed type of use and agreed purpose during the duration of the partnership.
Unless expressly agreed otherwise, only the purpose set out by the customer when the order was placed shall be deemed the purpose of the agreement. If nothing to the contrary is expressly agreed, only a simple and non-transferable right of use shall
apply in each case and, in particular, there shall be no obligation whatsoever to hand over the source code or open layout files. If the handover of the source code has been agreed, any liability and warranty of PRfact AG shall apply exclusively to the unchanged source code at the time of handover.
All rights to services and works presented but not selected for implementation shall also remain with PRfact AG.
The client shall acquire the right to use the work to the agreed extent upon payment of the fee.
The agency shall inform the customer of the duration and the conditions under which the copyrights of third parties concerned may be used by the customer. After the partnership has come to an end, the services of the agency may only continue to be used with its express approval and against compensation.
For other customers, the agency shall not use the services provided to the customer (in accordance with the agreed concept) – in particular all ideas, drafts and designs – in the same form, but rather only in a modified form in order to avoid confusion with the customer. This does not apply if the customer decides not to implement or does not pay for the services provided by the agency.
Our work may only be published if the agency and copyright are mentioned.
A violation of this obligation shall give rise to damages in favour of PRfact AG. Without evidence of the mentioning of the agency and copyright, we shall be owed a 100% surcharge on the agreed or usual usage fees.
For its own advertising purposes, PRfact AG may use the developed communication measures in small font with the name and/or logo in presentations and on our website free of charge and in an adequate manner; press releases shall be coordinated with the client.
With the approval of the work, the client shall assume responsibility for the accuracy of the technical aspects, content and functionality of the product, image and text. The agency rejects any liability for obvious defects for such work approved by the client. Claims regarding hidden defects are to be asserted to the agency in writing within 14 days of discovery at the latest, failing which the rights relating to defects shall be forfeited.
PRfact AG shall not assume any guarantees with regard to the services of third parties. Any guarantee claims shall be assigned to the customer.
PRfact AG does not assume any guarantee for defects in its own services that are not reported in writing immediately after receipt, and within 30 days of delivery at the latest.
In the event of defects that evidently existed at the time of delivery and were reported within the deadline, the customer shall only be entitled to demand correction of the defects. A reduction shall only be allowed after an initial unsuccessful correction. Rescission shall be excluded. The customer is not entitled to have the defects corrected by a third party or carry out their own corrections. In the event of violation of this provision, any guarantee shall be rejected.
PRfact AG shall assume no liability whatsoever for the services of third parties. Liability for auxiliary persons is excluded. The liability of PRfact AG is limited to intent and gross negligence. No liability shall be assumed for consequential damages or losses. Liability for data losses shall be excluded. Liability in any case is limited to the value of the order in accordance with the offer or order confirmation.
We shall not be liable for lost profits unless the loss is founded on an intentional or grossly negligent contractual violation on our part.
Briefing/freedom of the designer/additional services
The client’s brief forms the basis of our work. Should the brief be made orally, we shall send the client a record of the brief. This record shall become a binding work document and shall be deemed a commercial letter of confirmation.
The agreements and orders contained therein shall be binding if and insofar as the client does not object to them in writing or in text form within three working days.
Only one draft and a one-off revision thereof shall be due each time. Should the client wish for other changes or for the creation and submission of further drafts in addition to the one-off draft and revision, these shall be deemed additional services that shall be charged separately by time.
With the approval of the work, the client shall assume responsibility for the accuracy of the image and text.
We shall only monitor production by special agreement. If such an agreement exists, we are authorised to make the required decisions and issue instructions.
The contracting parties undertake to maintain secrecy in the context of competitions, contractual negotiations and the fulfilment of the order. PRfact AG is entitled but not obliged to make and keep copies of the results of the order.
Should parts of these GTC become completely or partially ineffective, the remaining GTC shall remain binding. The customer is not entitled to transfer any rights from this contract without written consent by PRfact AG. Contracts between PRfact AG and its customers are subject to Swiss law.
The place of jurisdiction for all disputes shall be the headquarters of PRfact AG.
PRfact AG, Zurich, November 2017