1. scope of application
The following General Terms and Conditions (hereinafter "GTC") apply to all business relationships between flink think GmbH (hereinafter "flink think") and its clients (hereinafter "Clients") in relation to the creation and maintenance of websites, the provision of online marketing services and related digital services (hereinafter "Services").
flink think reserves the right to amend these GTC without prior notice. The version at the time of conclusion of the contract shall be authoritative.
2 Conclusion of contract and scope of services
2.1 The contract (including the GTC) is concluded when the client accepts the offer from flink think. The scope of services shall be specified in the respective order confirmation or in an individual offer.
2.2 Changes and additions to the scope of services require the written consent of both parties.
2.3 The scope of services of flink think is conclusively described in the order confirmation or the individual offer. There are no ancillary service obligations on the part of flink think.
3. remuneration
3.1 The remuneration is based on the scope specified in the offer or the order confirmation. All prices are quoted in Swiss francs and exclusive of VAT.
3.2 Additional expenses incurred as a result of subsequent changes made by the customer shall be charged at cost and invoiced separately.
3.3 flink think shall invoice 30% of the quoted price at the start of the project. Thereafter, the services shall be invoiced monthly or at the end of the project at flink think's discretion. The client is obliged to settle invoices from flink think and third parties within 20 days. Recurring services shall be invoiced in accordance with the period offered, but at least annually.
3.4 Hosting, maintenance and other ongoing costs are owed from the time the order is placed.
3.5 The client shall only be entitled to all discounts and comparable reductions if the client meets its payment obligations to flink think in full and on time. In the event of non-compliance, the discounts and comparable reductions shall lapse without compensation.
3.6 If the client demands the surrender of access data, passwords, source code, work results and/or other data and information from flink think, flink think shall have the right to make this surrender dependent on the prior and full payment of all services provided or to be provided by flink think, irrespective of whether the payments are already due or not. As long as the client has not made these payments, flink think shall have a comprehensive right of retention.
3.7 If the client does not meet its payment obligations on time, the client shall be charged CHF 160 plus VAT per hour for the internal costs of collecting outstanding payments. In addition, the client must fully indemnify flink think for all costs in connection with reminders, debt collection, arbitration and court proceedings and lawyers' fees.
If the client is in arrears with a payment, flink think is entitled to suspend all further services (e.g. hosting) immediately.
4 Obligations of the customer to cooperate
4.1 The client undertakes to provide flink think with all information and materials necessary for the execution of the order in good time.
4.2 Delays and all expenses caused by inadequate fulfillment of the client's obligations to cooperate shall be borne by the client. If flink think incurs additional expenses because the client has not or only partially fulfilled its obligations to cooperate, flink think shall invoice the client for these additional costs in accordance with the hourly rates specified in the offer.
5. copyrights and rights of use
5.1 Unless otherwise agreed in writing between the parties, flink think shall grant the client the rights of use for a specific purpose to the work results created by flink think for the client as part of the services. No transfer of rights (including copyrights) shall take place. Any further granting of rights of use or transfer of copyrights, in particular the subsequent use beyond the contractually agreed purpose, as well as the transfer of copyrights or rights of use to third parties, shall require an additional agreement and remuneration. flink think expressly reserves the right to be named.
5.2 flink think is entitled to link and label the websites created. Furthermore, flink think is entitled to use the work results and to present them publicly on the Internet or in printed media.
5.3 Any granting of rights of use as well as any additionally agreed transfer of copyrights shall be subject to timely payment by the client in accordance with the agreed terms of payment under Clause 3. In the event of late payment or other breaches of contract by the client, flink think shall have the right to permanently revoke or restrict the right of use granted.
5.4 If the services created by flink think are used unlawfully, in particular in a way that goes beyond the agreed rights of use or infringes revoked rights of use or existing copyrights, the client shall be obliged to pay flink think a contractual penalty of CHF 10,000 net per infringement.
5.5 Irrespective of the payment of a contractual penalty, flink think reserves the right to assert further claims and to prohibit the unlawful use of its services. Rights of use to projects that were compensated on a time and material basis or created as part of a lump sum project without being realized shall remain with flink think.
6. involvement of third parties
6.1 flink think has the right to call in external third parties to fulfill its contractual commitments, provided that this does not impair the contractually guaranteed rights and the quality of the services for the client.
6.2 flink think accepts no responsibility or guarantee for costs charged directly to the client by third parties.
6.3 Likewise, flink think shall not be liable for the client's own services or for services that the client has independently commissioned from third parties.
7. limitation of liability
7.1 flink think shall only be liable for damages caused by intentional or grossly negligent actions. Any further liability on the part of flink think is excluded in full, irrespective of the legal grounds on which the damages are asserted.
7.2 The above limitations of liability shall also apply accordingly in the event of any claims for damages by the client directly against employees, agents or vicarious agents of flink think, in particular also against third parties. With regard to damage caused by a third party, flink think shall only be liable for the dutiful selection of the third party. However, flink think offers the client the option of assigning these claims to the client, insofar as legally possible, if flink think has its own claims against the third party.
7.3 flink think does not check the content provided by the client or third parties for legal compliance or security. The client is solely responsible for the content provided by the client.
8. warranty
8.1 No warranty is given for defects in parts of the services supplied or in the overall service where flink think has acted on the instructions of the client.
8.2 Complaints about defects must be made immediately in writing in a comprehensible manner and with sufficient detail. In doing so, flink think has the right to rectification. If an appropriate correction of the defects is not possible within a reasonable period of time, the client shall be entitled to an appropriate price reduction, with the exception of the right to withdraw from the contract. flink think does not provide any guarantee of success, nor are services offered on the basis of a success fee.
9. data and documents
9.1 Upon termination of the contract, flink think shall, at the client's request, hand over its client data and documents created as part of the order for up to 60 days, provided that the client has previously fulfilled all payment obligations in full and on time. Aids, intermediate products and by-products produced during the execution of the order shall remain the property of flink think and shall not be handed over.
9.2 Documents and data provided by the customer will be returned at any time at the customer's request.
10. confidentiality
10.1 flink think and the client mutually undertake to treat all information and documents that they receive in the course of their collaboration as confidential. They expressly agree not to disseminate such information and documents without consent, forward them to third parties, make them publicly accessible or use them outside the agreed framework.
10.2 Information carriers that flink think has developed specifically for public use are not covered by this non-disclosure agreement.
10.3 flink think is also entitled to use the services and the relationship with the client (including client names) for marketing purposes beyond the termination of the contract.
11 Contract duration and termination
11.1 The duration of the contract is determined by the respective contractual relationship. It can only be terminated prematurely within the framework of the applicable statutory provisions.
11.2 Permanent maintenance or support contracts can be terminated with three months' notice to the end of a calendar year.
12. final provisions
12.1 Amendments and supplements to these GTC must be made in writing.
12.2 Should one or more provisions of the contractual relationship or these GTC be or become invalid or ineffective, this shall not affect the remaining part of the contractual relationship and the GTC. In the event of the invalidity or ineffectiveness of a clause, it shall be replaced by a clause that comes closest to the economic purpose of the invalid provision. The same applies in the event of a loophole.
12.3 The contractual relationship shall be governed exclusively by Swiss law.
12.4 In the event of legal disputes arising from or in connection with the contractual relationship and the GTC, including their validity, invalidity, breach or termination, the ordinary courts at the registered office of flink think shall have jurisdiction. Mandatory legal jurisdictions are reserved.