1. Scope of application
1.1 These General Terms and Conditions (hereinafter "GTC") apply to all business relations between VIVEN AG (hereinafter "Company") and its customers. If the Company's offer contains deviating provisions, these shall take precedence.
1.2 The Company produces audiovisual products (videos, photographs, etc., hereinafter referred to as "Products") and advises customers on the creation of such products. All deliveries, services and offers of the Company are made exclusively on the basis of these General Terms and Conditions. Deviating provisions of the Customer shall only apply if they have been expressly agreed with the Company in writing.
1.3 The Customer's General Terms and Conditions shall not be accepted and shall not apply to the contractual relationship between the Company and the Customer. This shall also apply in the event that the Company has not expressly objected to such general terms and conditions.
2. Conclusion of contract
2.1 The Company is free to change the price quotations and offers at any time until acceptance by the Customer.
2.2 Orders from customers are binding offers which are accepted by the Company either by express order confirmation or implied delivery of the ordered products to the customer.
3.1 . Invoices are due for payment in the invoiced currency within 30 days of the invoice date.
3.2 If the agreed compensation exceeds CHF 10,000 due to lack of agreement, the following payment modalities and due dates shall apply: 50% after conclusion of the contract, 30% before commencement of Production and 20% after completion of the Production.
3.3 Upon expiry of the payment period specified in the invoice, the customer shall be in default without further reminder, from which time 5% default interest shall be owed. The company is entitled to charge any collection costs to the customer.
3.4 If the customer is in default, the Company shall be entitled to immediately discontinue all further services without any obligation to pay compensation. All rights to the products shall remain with the Company until full payment has been made (Clause 9.1). The Company shall be entitled to immediately terminate any connected contracts without further formalities and to claim damages. The customer waives any claims for compensation on the basis of this cessation of performance.
4. Services provided by the company
4.1 Compensation for services rendered by the Company shall be based on the actual time spent. The fee stated in the offer is an estimate of expenses. Value added taxes, any expenditures or expenses are not included in the offer and must be compensated additionally.
4.2 The Company's cost estimates include a maximum of two correction rounds. Further adjustments are to be compensated according to time spent, at CHF 200 per hour in the absence of an individually fixed hourly rate (plus VAT, expenses and fees).
4.3 The delivery periods stated by the Company are indicative and not binding. Any liability for delays is hereby excluded.
4.4 Any costs for the delivery of the product or insurance premiums for risks in connection with the fulfillment of the order shall be borne by the customer.
4.5 If not otherwise agreed, the overtime surcharges for the 10th and 11th hour are 25%, for the 12th and 13th hour 50%, for the 14th and 15th hour 100% and from the 16th hour 150%
5. Rights and obligations of the customer
5.1 The Customer shall take all necessary precautions to enable the Company to perform its services in a timely manner and in compliance with the law. In particular, he shall assure the Company that he holds all rights and permits necessary for the performance of the order and that no third-party rights are infringed by the order, otherwise he shall hold the Company harmless and free from any third-party claims. The Customer shall ensure project management (e.g. provision of a contact person) which enables the Company to implement the order in the best possible way.
5.2 It is the responsibility of the Customer to store the products and work results of the Company securely after receipt and to take the necessary measures against loss of data (e.g. by means of appropriate backup solutions in the case of data). The Company disclaims any liability for loss of data.
6. Rights and obligations of companies
6.1 The Company is entitled to reject instructions that deviate from the originally agreed concept or that restrict artistic freedom in such a way that they are incompatible with the principles of the Company (see section 10.1).
6.2 Delivery of the Services shall take place when the Products are made available in the Cloud or the physical objects are handed over to the Customer or its representatives.
6.3 The Company shall have no obligation to keep the Products available or to keep or store them securely. The archiving of the Customer's Products is the responsibility of the Customer.
7. Adjustments and cancellations
7.1 Orders for a product are binding, and the Company therefore reserves the right to claim damages in the event of adjustments or cancellations. In particular, such claims may consist of costs for rented equipment, booked personnel or other expenses that have become useless.
7.2 If an adjustment (e.g. postponement) or cancellation takes place less than two working days (48 hours) before the start of Production / Production (excluding Saturday/Sunday and public holidays in the Canton of Zurich), 100% of the price according to the offer is due for payment within 10 days of the day of Production (contractual penalty), irrespective of the actual costs incurred. If cancellation takes place less than three working days (72 hours) before the start of Production / Production 75% of the price according to the offer is due for payment. If cancellation takes place less than four working days (96 hours) before the start of Production / Production 50% of the price according to the offer is due for payment. If cancellation takes place less than six working days (144 hours) before the start of Production / Production 25% of the price according to the offer is due for payment. If the cancellation is communicated more than seven days before the start of Production, there is no right for compensation for loss of income. In addition, the customer shall owe damages, in particular all useless expenses incurred by the Company for the production of the product (material and room rent, personnel costs, etc.).
8. Defects, inspection and complaint
8.1 The Company shall provide its services carefully in accordance with the applicable professional rules. The services and products provided by the Company represent art and are subject to strong subjective judgements. The Company strives to achieve the best possible result for its clients. Nevertheless, it cannot be ruled out that the client may not like the project for subjective reasons, which is not a shortcoming. The same applies to objections in connection with artistic freedom (e.g. against the concept, design, style, etc.).
8.2 The customer must inspect the products immediately after delivery (item 6.2). In the case of defects, objective defects must be reported in detail immediately.
8.3 Should defects exist, the Company shall be entitled, at its discretion, either to grant a reduction or to remedy the defect. Replacement without the explicit consent of the Company is excluded.
9. Limitation of liability
9.1 The Company's liability is limited to 25% of the agreed fee in accordance with the cost estimate. Furthermore, the Company shall not be liable for coincidence (not even in the event of default) or force majeure. Furthermore, the liability of the Company for all cases of slight and medium negligence is excluded. Computer viruses, worms or other malware shall also be regarded as force majeure.
9.2 The liability of the Company for auxiliary persons is also excluded in cases of intent and gross negligence. Liability for slight negligence is excluded in the case of employees within the meaning of Art. 101, para. 3 of the Swiss Code of Obligations.
10. Rights to the products and right of use
10.1 The ownership and all intangible rights to the Products and the results of the work (copyrights and other intellectual property rights) arising in connection with the order shall remain with the Company until the agreed compensation for the Product has been paid in full. The Company is entitled to withhold the relevant work results until full payment has been made.
10.2 Upon payment, the ownership of any data carriers or physical work results as well as the right to use the intangible rights arising within the scope of the order shall pass to the Customer to the extent agreed upon at the conclusion of the contract. In the absence of an agreement, all rights not explicitly transferred to the customer shall remain with the Company.
10.3 In any case, the Company shall be entitled to use the audiovisual works (film, photographs, etc.) produced within the framework of the order as a showreel or as self-promotion and to adapt them accordingly for this purpose. The Customer grants the Company all necessary rights of use for an unlimited period of time and space.
11.1 The Company shall be entitled to terminate the cooperation immediately if serious circumstances render continuation unreasonable, in particular if it becomes apparent that the project deviates from the originally agreed basic concept, is no longer compatible with the Company's principles or that third-party rights are being violated. In this case, the contractual relationship shall be terminated prematurely. Upon declaration of termination, the outstanding payments of the Company shall become due for payment immediately. The Company shall be entitled to withhold delivery until payment has been made and to claim as damages those costs as compensation which, if the order is continued, are fixed for the following 3 months and/or unavoidably incurred.
12. Contractual penalty
12.1 The use of the work results outside the agreed purpose without the express consent of the Company is prohibited. Violation of this provision shall result in a penalty of CHF 5,000, the payment of which shall not release the Company from its obligation to comply. A continuation of the violation will result in a weekly penalty. Claims for damages exceeding the contractual penalty are reserved.
13. Other provisions
13.1 The assignment of rights from this contract is not permitted without the express consent of the Company. The place of performance for all obligations of the contracting parties shall be the registered office of the Company in Switzerland.
13.2 The Customer waives any set-off against the Company and any assignment of its claims against the Company to third parties.
13.3 Notices shall be sent in writing to VIVEN AG, Kernstrasse 57, 8004 Zurich, Switzerland or by e-mail to firstname.lastname@example.org
13.4 All legal relationships between the Company and the Customer shall be governed by substantive Swiss law to the exclusion of the Vienna Sales Convention.
13.5 The ordinary courts at the registered office of the Company shall have exclusive jurisdiction to judge all disputes between the Customer and the Company. An action by the Company at the domicile/residence of the Customer shall be admissible.