General terms and conditions of business
1. Scope of application and validity
1.1. These general terms and conditions of business (hereinafter "GTC") regulate the relations between customers and kubus media AG (hereinafter "kubus media).
1.2. The GTC form an integral part of the respective customer contracts and supplement any agreements reached therein. They will be deemed as accepted upon acceptance of the offer or signing of the order confirmation and/or customer contract.
1.3. Binding offers from kubus media are valid for 30 days from the date of issue, unless otherwise expressly agreed. The provisions in clause 4.3. remain reserved.
1.4. Verbal arrangements or agreements that differ from these GTC will be valid subject to the written confirmation from kubus media.
2.1. kubus media shall ensure that customers are informed about the progress of the work, and notify them of any circumstances that could jeopardise fulfillment of the contract.
2.2. kubus media is authorised to assign its business management to third parties.
2.3. Customers shall carry out all preparations and collaborative actions that are necessary for kubus media to render its services, and shall refrain from anything that impedes or jeopardises contractual performance. In particular, they shall grant kubus media access to their IT infrastructure, where necessary. Customers shall provide the necessary documents, data and resources free of charge.
2.4. All data and documents brought in by customers for processing must meet the minimum technical requirements established by kubus media. Customers will bear the consequences of any non-compliance or erroneous data and documents, whereby kubus media can charge for any costs incurred for rectification thereof at the applicable rates.
2.5. If kubus media has committed itself to deadlines, all delays in meeting such deadlines that are due to circumstances for which kubus media is not to blame, remain reserved. This applies in particular to subsequent changes or supplements to contractual performance or delays in work due to customers or third parties. In the event of deadline delays for which kubus media is responsible, the parties shall adapt the time schedule by joint agreement.
3.1. Project assignments such as the elaboration of websites and the like are subject to acceptance. Acceptance serves to check whether the services have been provided by kubus media in accordance with the contract.
3.2. kubus media shall notify customers when they are ready for acceptance. Customers must, as a rule, carry out the acceptance procedure immediately after receipt of this notification.
3.3. If customers do not carry out the acceptance procedure within a period of 2 calendar weeks after notification of readiness for acceptance on the part of kubus media, or if they do not effectively put the service received into operation, the work concerned will be deemed to have been accepted.
3.4. Customers shall accept the service and confirm acceptance thereof in the acceptance report, if no substantial defects are found during the acceptance test.
3.5. Defects are substantial if a replacement service is not economically or technically viable. kubus media shall remedy such defects free of charge and the acceptance test will be repeated. kubus media has the right to attempt to rectify such defects twice. If the third acceptance test also fails, customers can withdraw from the contract and demand repayment of any amount already paid. Any defects that do not obstruct acceptance shall be remedied by kubus media after acceptance, free of charge.
3.6. The above provisions relating to acceptance and consequences are binding for the settlement of customer claims.
4.1. All work transferred to kubus media shall be carried out either at the agreed fee rates and conditions or, if no such agreement has been made, at the respectively valid fee rates (see Appendix "Fee rates"). All services provided by kubus media that are not covered by the agreed fee will be paid for or remunerated separately. This applies in particular to any other compensation due to kubus media, such as cash expenditures that go beyond the usual business operations (such as courier services, extraordinary shipping costs or travel expenses).
4.2. Prices are exclusive of valued added tax and other levies or auxiliary costs. kubus media is authorised to demand advance payments in order to cover its expenditures. In general, 50% of the order volume is due at the commencement of work and 50% upon project delivery. Cost overviews issued by kubus media for project assignments are binding. When it is predictable that the actual costs of kubus media will exceed the written estimate by more than 20 percent, kubus media shall point out the higher costs to the customers.
4.3. A cost overrun will be deemed as approved by the customers unless they object thereto in writing within three days of this notification, and at the same time name cheaper alternatives.
4.4. For all work by kubus media which - for whatever reason - is not actually carried out, kubus media shall charge a suitable remuneration. By paying this remuneration, customers will not acquire any rights; any concept, drafts and the like that are not implemented must in fact be returned immediately to kubus media.
4.5. Invoices issued by kubus media are due 30 days after the invoice date, net without deductions, unless otherwise agreed. In default of payment, arrears interest will be due without further reminder, currently at the rate of 10% p.a. plus dunning charges of currently CHF 20.00 for each reminder. Delivered goods and services shall remain the property of kubus media until payment has been made in full. Any agreed rights of use will only be deemed granted after payment has been made.
4.6. The offsetting of credit amounts is excluded without the express consent of kubus media.
4.7. kubus media is authorised to adjust its prices on 1st January of any year, subject to 1 month's notice.
4.8. Price adjustments following a subsequent change to the contractual services or following changes to statutory provisions remain reserved in any case.
5. Intellectual property and property rights
5.1. Payment of the fee and/or remuneration will only entitle customers to the non-exclusive, non-transferable use for the agreed purpose and the agreed scope of use.
5.2. Any changes made by the customers to the services of kubus media are only permissible with the express consent of kubus media and that of the creators, if the services are protected by copyright.
5.3. All rights to intellectual property (e.g. property rights, copyrights and rights of use etc.) in relation to the services provided by kubus media, including those deriving from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, layouts, final artworks, concepts etc.), as well as individual parts deriving therefrom, shall remain with kubus media in the same way as individual artworks, programs and original drafts. kubus media can demand these to be returned at any time.
5.4. If third parties have rights to these, kubus media shall ensure that kubus media has all the relative rights or use or distribution.
5.5. kubus media is entitled to make reference to kubus media and, if need be, to the creator, on all advertising media and in all advertising campaigns, without the customer being entitled to claim any compensation. As a rule, this will take the form of the words "Hand made by kubus media in Basel".
5.6. kubus media is authorised to re-use ideas, concepts and procedures developed during fulfillment of the contract, in its own name. This right applies, regardless whether any employees of the customers were involved in the developments.
5.7. In the event of third-party claims owing to the alleged infringement of property rights, customers undertake to notify kubus media immediately and to transfer the right to take legal action to the latter, at its request. This includes, in particular, the right to conclude settlements. Any liability of kubus media will be dropped if customers fail to inform it immediately of any claims asserted, do not assign it the requested right to take legal action, or fail to support it to the best of their ability in the event of legal proceedings.
6. Secrecy and references
6.1. The parties to the contract undertake to treat all information marked as confidential in a confidential manner. The parties to the contract shall impose these obligations on their own employees and any subcontractors.
6.2. kubus media is permitted to mention any contractual relationship with customers in its respective reference lists and marketing documents (including the use of a customer logo).
7. Guarantee and liability of kubus media
7.1. kubus media guarantees faithful and careful execution of the agreed services.
7.2. kubus media is not responsible for any contents provided by customers. In particular, kubus media is not obliged to check the contents for possible legal infringements. Should third parties assert claims against kubus media due to possible legal infringements that result from the contents of websites, programs etc., customers undertake to release kubus media from any liability and to repay to kubus media all and any costs incurred by the latter from the possible legal infringement.
7.3. kubus media is liable for any damages caused and proved by the customer unless kubus media proves that it is not at fault. It will only be liable in the event of gross negligence and intention.
7.4. Any further liability will be excluded, however, in particular for indirect and collateral damage and consequential damage, such as lost profits, unrealised savings, additional expenditures or third-party claims.
7.5. In their own interests, customers shall check all services provided by kubus media. Any complaints regarding services that are not properly rendered must be notified in writing within 14 days of delivery. If the notification of defects is not made in the required form or time-limit, kubus media will deem the services concerned to have been approved.
7.6. Any further liability and guarantee is excluded.
8. Duration / Termination of contractual relationship
8.1. A maintenance and support contract will be valid for a minimum of 2 years from the date of signature. After this, it will be tacitly renewed by a further contractual year unless it is terminated subject to a period of notice of 3 months to the end of the respective expiry of the contract. This does not affect the right to termination without notice for good cause.
8.2. Contracts relating to project assignments are binding after they have been signed or after receipt of order confirmation. Until the project assignments have been completed, customers may withdraw from the contract against payment of any work already performed and the presumed expenses incurred up to termination.
8.3. Each party can dissolve the contractual relationship immediately if the other party becomes insolvent, requests judicial or extra-judicial 'Nachlassstundung' [moratorium on debt enforcement], a 'Notstundung' [emergency moratorium] or a bankruptcy deferment within the meaning of Art. 725a Swiss Code of Obligations (OR), becomes bankrupt, strives for a judicial or extra-judicial debt settlement procedure, or concludes other contracts with its contractors due to imminent insolvency, or if other similar actions under Swiss or foreign law are either underway or pending.
8.4. If customers fail to meet their obligations for fulfillment of the contract, in spite of two reminders, are in default with payments or for any other important reasons, the payment claim of kubus media appears to be endangered, kubus media will be entitled to suspend the provision of services until payment has been made or it has received an appropriate surety from a Swiss bank.
8.5. If customers dissolve a contract in breach of the above grace periods or periods of notice, kubus media will be entitled to charge for any services provided up to that point in time and for any presumed expenses incurred up to the next possible date of termination or end of project.
9. Poaching of kubus media employees
9.1. For the period of one year after the completion of the contractual services, customers undertake not to hire employees of kubus media or its partners and subcontractors, nor to get them to work for them either directly or indirectly beyond the scope of the mandates concluded with kubus media.
10. Force majeure
10.1. If, despite taking the greatest care, a party is unable to meet its contractual obligations due to events of force majeure such as natural disasters of particular intensity, warfare, strikes, unexpected official restrictions etc., the contractual fulfillment or the date of contractual fulfillment will be postponed accordingly based on the event that has occurred, provided the party to the contract affected by the force majeure event notifies the other party immediately of this circumstance.
11. Final provisions
11.1. Should single provisions be invalid or become invalid due to a circumstance that occurs at a later point in time, this will not affect the validity of the remaining provisions. The invalid provision will be replaced by one that comes closest to what the parties to the contract would have wanted, had they considered the point concerned. The same applies to loopholes in these GTC.
11.2. Apart from this, the contractual relationship is governed exclusively by Swiss law, with exclusion of the UN sales law and exclusion of the provisions on the conflict of laws and international agreements (such as the Vienna Convention).
11.3. The seat of kubus media in Basel is the exclusive place of jurisdiction. Legally mandatory places of jurisdiction are reserved.
Consulting, CHF 180.00/hour
Editorial work, CHF 150.00/hour
Concept, CHF 180.00/hour
Design, CHF 180.00/hour
Development, CHF 180.00/hour