TBWA\ Switzerland AG
Seefeldstrasse 19, 8008 Zürich
+41 44 913 31 31
TBWA\ Switzerland AG is an agency (hereinafter referred to as “agency”) specializing in marketing communications and branding. These general Ts & Cs apply to all relationships between the agency and its customers (hereinafter referred to as “clients”).
1. Agency services
The agency shall provide its services in accordance with a separately agreed contract or, if such a contract does not exist, in accordance with the agency’s original quote.
2. Due diligence, trade secrets
The agency is obliged to fulfil the tasks assigned to it diligently, conscientiously and in accordance with instructions. The agency shall serve the interests of the client in good faith and, in particular, shall protect any trade secrets of the client where the agency is granted an insight into these.
Copyrights to any material produced by the agency (including but not limited to communication campaigns, communication concepts, design concepts, designs, graphics drafts and sketches, texts, images, photos, audio, films, labels, packaging, brand logos, press ads, radio and television ads, posters, online solutions, etc.) shall remain with the agency. The agency shall hold these rights pursuant to the Federal Copyright and Related Proprietary Rights Act passed on 9 October 1992. The agency may indicate that it is the author of its materials in a form to be determined by the agency.
3.2 Scope and rights of use
The scope of permitted use of materials created by the agency shall be based on a separately agreed contract or, if such a contract does not exist, based on the agency’s original offer. Materials created by the agency may only be used within the scope of the agreed project. Furthermore, any documents related to the project and delivered to the client may also only be used within the scope of the agreed project. Unless otherwise agreed, the client may only use the content of the materials created by the agency once (on a single occasion, in a single location). The client is not permitted to edit or process the materials created by the agency. The client must obtain permission from the agency each time it uses the materials, whether within or outside the scope of the project. The client is not authorized to make changes to the materials created by the agency without the express permission of the agency. Any use beyond the scope of the project or any editing or processing of the materials shall be subject to payment of a contractual penalty pursuant to clause 3.3.
3.3 Unauthorized use
Any unauthorized use of the agency’s copyright protected materials or presentation documents (e.g. pitches) shall require the client to pay a contractual penalty in the amount of 50% of the total project volume, or at least 10,000.00 Swiss francs. The agency expressly reserves the right to claim further damages. Payment of the contractual penalty has no effect on the prohibition on use of the materials. Every additional use shall be subject to payment of the contractual penalty and liable to payment of damages.
3.4 Presentation, pitch
In order to use copyright protected materials created by the agency as well as agency concepts and ideas that are made known to the client within the scope of presentations (e.g. pitches), written permission must be obtained from the agency. The terms in clauses 3.1–3.3 shall apply.
4. Involvement of third parties
The agency is authorized to procure the support of third parties whose services may be required for completion of the project and to charge these services to the client’s account. Invoices to the client’s account submitted by third parties shall be verified by the agency and forwarded to the client. The agency is not liable for the accuracy and payment of third-party invoices.
When processing, modifying or redesigning third-party materials that the agency receives from the client, the agency can assume in good faith and without express indication by the client that authorization has been provided to make such changes and that this does not violate the rights of third parties. If, contrary to expectations, a third party asserts a legal claim, the client shall be liable for all costs that arise as a result of this claim (including legal and court fees) and shall reimburse the agency for all resulting damages.
The agency guarantees that the services it provides are free from any third-party rights, particularly with regard to what is possible and permissible legally and based on any rights administration agreements between copyright owners and collectives. The agency shall inform the client should any such agreements exist. The agency shall not assume any liability for third-party services that are procured where the agency merely acted as the intermediary.
Where the agency purchases rights to use images or other third-party rights on behalf of the agency within the scope of a project, the applicable compensation, duration, scope and limitations shall be documented on the original invoice. The client shall be responsible for the acquisition of any further rights of use (e.g. in terms of time, space, location) and for complying with the corresponding time limit.
The agency’s liability for its own actions is excluded to the extent permitted by law. Furthermore, the agency shall not be liable for deficiencies in third-party services and deliveries or for any damages resulting from such deficiencies.
7. Payment for services
7.1 Preliminary project discussion
The initial discussion of a project and any relevant negotiations are free of charge and non-binding for both parties. Any negotiations and preliminary services above and beyond the generation of a quote shall be subject to compensation.
7.2 Calculating payment for services
The agency’s fees will either be based on time required (hourly fee pursuant to our up-to-date rate card) or will be fixed (budget). The details shall be laid out in a separately agreed contract or, if such a contract does not exist, in the original quote.
7.3 Additional expenses
The agency shall in good time make the client aware of any additional expenses based on changed circumstances or specifications in the brief. The additional expenses shall be listed in the invoice.
7.4 Presentation, pitch
The agency shall not provide any preliminary services free of charge. The agency is entitled to charge a fee for the development of proposals for planned activities (e.g. for a pitch). The fee shall be based on a separately agreed contract or, if such a contract does not exist, on the original quote. If neither a contract nor a quote exists, the fee shall be based on the hourly rate, in accordance with industry-wide practice.
7.5 Reduction in the scope of the project or project cancellation
If a project is reduced in scope or cancelled, the agency has the right to charge for the work performed up to that point. Furthermore, the agency has the right:
a) to reimbursement of third-party expenses and preliminary services;
b) to compensation for all damages resulting from the reduction or cancellation;
c) to use the work it has produced up to that point elsewhere in the event of cancellation of the project.
7.6 Terms of payment
The client must settle invoices for services provided by the due date stated in the relevant invoice or within the specified term of payment. Where there is no due date or term of payment specified, the term shall be 30 days from the date of the invoice. If the term or due date lapses without payment, the client shall automatically be in arrears, i.e. even without a reminder or warning. In this instance, the agency reserves the right to demand interest on arrears of 5% p.a.
7.7 Value added tax
Quotes produced by the agency and all additional agency fees and costs exclude statutory VAT and all other statutory levies or fees.
8. Retention of title
The agency reserves the right to retain ownership of all materials produced within the scope of a contract until payment is made in full.
9. Conclusion of business relationship
Individual contracts automatically lapse once they are fulfilled. Ongoing contracts may be terminated by either party with a notice of six months to the end of a calendar month, provided payment is made for all invoiced or billable expenses (fixed costs, fees, etc.) by the time the contract is duly concluded. Each party is permitted to immediately withdraw from a contract if the other party concludes a composition agreement or applies for creditor protection or if bankruptcy proceedings are opened against it.
10. Information and documents
The agency shall store information and documents it produces for the client for 10 years following conclusion of the business relationship, in return for payment.
11. Severability clause
Should one or more of the provisions in these General Terms and Conditions be or become invalid, in whole or in part, the remaining provisions or parts of that provision shall remain effective. The invalid provision(s) shall be replaced by a provision that corresponds to the purpose of the agreement or that comes as close as possible, and which the contractual parties would have agreed on to reach the same commercial outcome if they had been aware of the invalidity of the relevant provision(s). The same shall apply to all potential omissions in these Ts & Cs. The agency reserves the right to make changes to these Ts & Cs at any time; any new Ts & Cs will take immediate effect for existing contractual relationships.
12. Applicable law/legal venue
These Ts & Cs and all contractual relationships between the client and the agency are subject to Swiss law. The exclusive legal venue for both parties is the agency’s headquarters.
Zurich, Switzerland, January 2015