TBWA\ Switzerland AG is an agency (hereinafter referred to as the “Agency”) that is particularly active in the areas of marketing communication and branding. These GTC regulate all relations between the Agency and its clients (hereinafter referred to as “Client”).
1. Services of the agency
The Agency shall provide its service in accordance with a separate contract or, in the absence of such, in accordance with its offer.
2. Due diligence, business secret
The Agency undertakes to perform the tasks assigned to it carefully, conscientiously and in accordance with instructions. The Agency shall protect the legitimate interests of the Client in good faith and, in particular, protect the Client’s business secrets where the Agency has been granted insight.
The copyright to the works created by the agency (communication campaigns, communication concepts, design proposals, design, graphic designs and sketches, texts, images, photos, sound, films, labels, packaging, branded suits, advertisements, radio and TV spots, posters, online solutions, etc.) shall remain with the agency. The Agency holds these rights in accordance with the provisions of the Federal Copyright and Related Rights Act of October 9, 1992. The Agency is entitled to designate the authorship of its works in a form to be determined by the Agency.
3.2 Scope of use and rights
The scope of the permitted use in the works created by the Agency shall be determined by a separate agreement or, in the absence of such, by its offer. The works created by the agency may be used exclusively within the scope of the agreed order. Likewise, order documents or parts thereof which are handed over to the client may only be used within the scope of the agreed order. Unless otherwise agreed, the Client’s use of the works created by the Agency in terms of content, time and geography shall be limited to one-time use. A right to edit the works created by the Agency is not granted. For any use and any use outside the order, the client must obtain the permission of the agency. The Client is not entitled to make any changes to the works created by the Agency without the Agency’s consent. Any use beyond the scope of the order as well as any editing of the Agency’s works shall entail payment of a contractual penalty pursuant to sec. 3.3.
3.3 Unlawful use
The unlawful use of copyrighted works of the agency as well as of presentation proposals (e.g. pitch) obligates the client to pay a contractual penalty in the amount of 50% of the order volume or at least CHF 10,000.00. The right to claim further damages is expressly reserved. The payment of the penalty does not invalidate the prohibition of use. Any further use shall be subject to the payment of the above-mentioned penalty and shall entail the obligation to pay damages.
3.4 Presentations, Pitch
The use of copyrighted works as well as concepts and ideas of the agency, which are brought to the attention of the client in the course of presentations (e.g. pitch), requires the written consent of the agency. The provisions in sec. 3.1 – 3.3 apply mutatis mutandis.
4. Involvement of third parties
The Agency shall be entitled to involve third parties whose services the Agency requires for the execution of the order at the expense of the Client. Third-party invoices issued in the name of the Client shall be verified by the Agency and forwarded to the Client. The Agency is not liable for the accuracy and payment of invoices of third parties.
In the case of adaptations, adaptations or redesigns of third-party works which the Agency receives from the Client, the Agency may assume in good faith, without any express indication on the part of the Client, that the authorization for such uses exists and that accordingly no third-party rights are infringed. If, contrary to expectations, third parties nevertheless assert legal claims, the Client shall assume all costs incurred in averting such claims (including attorney’s fees and court costs) and shall reimburse the Agency for all resulting damages.
The Agency warrants that the services it provides are free of third-party rights, in particular within the scope of what is possible and permissible by law and on the basis of any rights management agreements between authors and collecting societies. The Agency shall inform the Client if such exploitation contracts should exist. The Agency shall not assume any warranty for services of third parties in the procurement of which it has merely acted as an intermediary.
If the Agency acquires image licenses or other third-party rights on behalf of the Client in the course of fulfilling the order, the applicable remuneration, term, scope and restrictions shall be documented in the original invoice. Any further acquisition of rights for uses beyond this (e.g. in terms of time, space, location) as well as compliance with the expiry period of the use shall be the responsibility of the customer.
The liability of the agency for its own actions is excluded to the extent permitted by law. Furthermore, the Agency shall not be liable for any defects arising from deliveries and services of third parties, nor for any damages arising from such defects….
7.1 Order preliminary meeting
The first meeting for an order as well as relevant negotiations are free of charge and non-binding for both parties. Negotiations and preliminary services that go beyond the preparation of basic offers are subject to compensation.
7.2 Fee settlement
The agency’s fee is calculated according to the time spent (hourly fee according to the current tariff list) or is agreed on a fixed basis (budget). The details are regulated in a separate contract, or if there is no such contract, in the offer.
7.3 Additional expense
The Agency shall inform the Client in good time of any necessary additional expenditure due to changed circumstances and specifications. The additional expense is shown in the statement.
7.4 Presentations, Pitch
The Agency shall not provide any advance services free of charge. For the preparation of proposals (such as pitch) on planned activities, the Agency is entitled to charge a fee. The fee shall be calculated in accordance with a separate contract or, in the absence of such a contract, in accordance with the offer. In the absence of both a contract and a quotation, the fee shall be calculated on an hourly basis in accordance with the rates customary in the industry.
7.5 Reduction or cancellation of the order
If an order is reduced in scope or cancelled, the Agency shall be entitled to the fee for the work performed up to that point. In addition, the agency has the right:
a) for reimbursement of expenses and advance payments from third parties;
b) to compensation for all damages resulting from the reduction or cancellation;
c) to use their work performed to date elsewhere in the event of cancellation of the order.
7.6 Payment modalities
The Client shall pay invoices for services rendered by the due date specified in the invoice or within the specified payment period. In the absence of a due date or payment term, a payment term of 30 days from the date of the invoice shall apply. Upon expiry of the payment deadline or the expiry date, the Client shall automatically be in default, i.e. even without a reminder. In this case, the agency reserves the right to charge interest on arrears of 5% p.a..
7.7 Value added tax
The offers prepared by the agency as well as all other fee and price quotations are exclusive of statutory value-added tax as well as any other duties or fees owed by law.
8. Retention of title
The Agency retains ownership of all products created in the course of fulfilling the contract until full payment has been made.
9. Termination of cooperation
Individual orders expire with their fulfillment. Orders in a permanent relationship can be terminated by either party with six months’ notice to the end of a calendar month in each case, with simultaneous settlement of all expenses (fixed costs, fees, etc.) charged or chargeable up to the ordinary termination of the contract. Either party is entitled to withdraw from the contract immediately if the other party enters into a composition agreement, files for creditor protection or if bankruptcy proceedings are instituted against it.
10. Data and documents
The Agency shall keep the data and documents created by it for the Client for ten years after the termination of the cooperation against reimbursement of costs.
11. Severability clause
Should one or more provisions of these General Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions or parts of such provisions shall remain unaffected. The invalid provision shall be replaced by a substitute provision which corresponds or at least comes close to the purpose of the agreement and which the contracting parties would have agreed to in order to achieve the same economic result if they had been aware of the invalidity of the provisions. The same applies to any gaps in these GTC. The Agency reserves the right to amend these GTC at any time; new GTC shall also become immediately effective for existing contractual relationships.
12 Applicable Law / Place of Jurisdiction
These GTC and all contractual relationships between the Client and the Agency shall be governed by Swiss law. The exclusive place of jurisdiction for both parties is the registered office of the agency.
Zurich, January 2021