General terms and conditions Faktor K

valid as of January 1, 2021

1. validity, conclusion of contract

1.1 Faktor K GmbH provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between Faktor K GmbH and the customer, even if no express reference is made to them. The GTC are exclusively applicable for legal relations with entrepreneurs.

1.2 The version valid at the time of the conclusion of the contract shall be authoritative in each case. Deviations from these as well as other supplementary agreements with the customer are only effective if they are confirmed in writing by Faktor K GmbH.

1.3 Any terms and conditions of business of the customer shall not be accepted, even if known, unless otherwise expressly agreed in writing in the individual case. Faktor K GmbH expressly objects to any General Terms and Conditions of the customer. No further objection to the customer’s GTC by Faktor K GmbH is required.

1.4 Amendments to the GTC shall be notified to the Customer and shall be deemed to be agreed if the Customer does not object to the amended GTC in writing within 14 days.

1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.
1.6 The offers of Faktor K GmbH are subject to confirmation and are non-binding.

2. online marketing services

Before placing an order, Faktor K GmbH expressly points out to the customer that the providers of “social media channels” (e.g. facebook, hereinafter referred to as “providers”) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Accordingly, the providers are not obliged to forward content and information to the users. There is therefore a risk, which cannot be calculated by Faktor K GmbH, that advertisements and appearances may be removed without cause. In the case of a complaint from another user, the providers will grant the possibility of a counterstatement, but even in this case the content will be removed immediately. In this case, the restoration of the original, lawful state may take some time. Faktor K GmbH works on the basis of these terms of use of the providers, over which it has no influence, and also bases the customer’s order on them. By placing an order, the Customer expressly acknowledges that these Terms of Use (co-)determine the rights and obligations of any contractual relationship. Faktor K GmbH intends to execute the customer’s order to the best of its knowledge and to comply with the guidelines of “social media channels”. However, due to the currently valid terms of use and the simple possibility of each user to claim infringements and thus achieve a removal of the content, Faktor K GmbH cannot guarantee that the commissioned campaign will also be retrievable at all times.

The agency provides services in the field of search engine marketing (Google AdWords), among others: Campaign construction, keyword definition, landing pages, campaign optimization, Facebook advertising, campaign evaluation. Faktor K GmbH Google AdWords marketing includes the conception, booking and optimization of campaigns within the framework of Google’s AdWords program. This involves the creation of campaigns and the definition of search terms and combinations of search terms agreed with the customer, hereinafter referred to as keywords.
The keyword marketing measures commissioned by the contract partner are implemented by the agency through media buying. The Agency shall place the orders in the name and for the account of the Contractual Partner. Media costs are billed directly between the contractual partner and the media company or according to a special agreement between Faktor K GmbH and the customer. Upon termination of the Agreement, the Agency’s access to the account (Account) established with the Media Company shall be terminated. For this purpose, the customer has to provide the agency with an appropriate account, which can be added to the account.

The agency is in no case obliged to place bookings for keywords or ads that contradict the relevant terms and conditions of the media company. The design and placement of an advertisement and the time of publication are governed by the applicable terms and conditions of the media company. Upon request of the Contractual Partner, the Agency shall send the Customer copies of the terms and conditions of the media companies concerned that are available to the Agency. The contracting party shall receive individual reports on the performance of the contract at the agreed time intervals.

The agency creates the advertising campaign according to specifications and in coordination with the client. However, it cannot be guaranteed that the chosen keywords will always result in the customer’s page being displayed in the first hits in the search engines. Nor can it be guaranteed that the advertising campaign will result in a general increase in demand. Based on general experience, an increase in the volume of business and inquiries can generally be assumed to be
Contracts for the support of Google AdWords campaigns are service contracts and no guarantee is given for the success of the measures carried out.
The Agency does not warrant that third party services, in particular network services or other third party supplies, will always be available without interruption, error-free and secure.

All copyrighted rights of use associated with the services rendered by the agency shall only be transferred exclusively to the contractual partner to the extent that the scope of the right of use in terms of space, time and content corresponds to the purpose of the contract. The agency retains the right to use the services for its own presentation purposes. Furthermore, the rights of use shall not pass until the contracting party has duly fulfilled its payment obligation. The editing or redesigning of the copyright-protected services as well as their publication and utilization by the contractual partner are not permitted without the consent of the agency. Independent works of the contractual partner which have been created in permissible use of the copyrighted services shall remain unaffected by this.

3. concept and idea protection

If the potential client has already invited Faktor K GmbH to prepare a concept in advance and Faktor K GmbH complies with this invitation before the main contract is concluded, the following provision shall apply:

3.1 Already by the invitation and the acceptance of the invitation by Faktor K GmbH, the potential client and Faktor K GmbH enter into a contractual relationship (“Pitching Contract”). This contract is also based on the GTC.

3.2 The potential client acknowledges that Faktor K GmbH already provides cost-intensive preliminary services with the concept development, even though the client has not yet assumed any service obligations.

3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The use and processing of these parts without the consent of Faktor K GmbH is not permitted to the potential customer already due to the copyright law.

3.4 The concept also contains ideas relevant to advertising that do not reach the level of a work and thus do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is later produced and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic character. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. shall be deemed to be an idea within the meaning of this agreement, even if they do not reach the level of a work.

3.5 The potential client undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by Faktor Faktor K GmbH within the framework of the concept outside the corrective of a main contract to be concluded at a later date.

3.6 If the potential customer is of the opinion that ideas were presented to him by Faktor K GmbH that he had already come up with prior to the presentation, he shall notify Faktor K GmbH of this fact by e-mail within 14 days of the day of the presentation, citing evidence that allows a chronological attribution.

3.7 In the opposite case, the contracting parties shall assume that Faktor K GmbH has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it can be assumed that Faktor K GmbH was compensated in the process.

3.8 The potential customer may release himself from his obligations under this point by paying a reasonable compensation plus 7.6% VAT. The exemption shall not take effect until the payment of the compensation has been received in full by Faktor K GmbH.

4. scope of services, order processing and customer’s duty to cooperate

4.1 The scope of the services to be provided is defined in the service description in the agency agreement, the offer or any order confirmation by Faktor K GmbH, and any briefing protocol (“offer documents”). Subsequent changes to the content of the service require written confirmation by Faktor K GmbH. Within the framework set by the customer, Faktor K GmbH is free to design the fulfillment of the order.

4.2 All graphic and content-related services provided by Faktor K GmbH must be reviewed by the customer and approved by him within fourteen working days of receipt by the customer. After the expiry of this period without feedback from the customer, they shall be deemed to have been approved by the customer.

4.3 The customer shall make available to Faktor K GmbH, in a timely and complete manner, all information and documents required for the provision of the service. He will inform them of all circumstances that are of importance for the execution of the order, even if they only become known during the execution of the order. The customer shall bear any expenses incurred as a result of work having to be repeated or delayed by Faktor K GmbH due to incorrect, incomplete or subsequently changed information provided by the customer.

4.4 The Customer shall furthermore be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights or other rights of third parties (rights clearing) and shall guarantee that the documents are free of third-party rights and can therefore be used for the intended purpose. Faktor K GmbH shall not be liable in the case of mere slight negligence or after fulfillment of its duty to warn – at least in the internal relationship with the customer – for any infringement of such third-party rights by documents made available. If a third party asserts a claim against Faktor Faktor K GmbH for such an infringement, the customer shall indemnify and hold Faktor K GmbH harmless; the customer shall compensate Faktor K GmbH for any and all disadvantages it incurs as a result of a third party asserting a claim, in particular the costs of adequate legal representation. The customer undertakes to support Faktor K GmbH in defending itself against any claims by third parties. The customer shall provide Faktor K GmbH with all documents for this purpose without being requested to do so.

5. third-party services / commissioning of third parties

5.1 Faktor K GmbH shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as service providers for the performance of services that are the subject matter of the contract, and/or to substitute such services (“Third-Party Service”).

5.2 The commissioning of third parties within the scope of an external service shall be carried out either in its own name or in the name of the Customer. Faktor K GmbH will carefully select this third party and ensure that it has the required professional qualifications.

5.3 The customer shall enter into obligations to third parties that extend beyond the term of the contract. This expressly also applies in the event of termination of the Faktor K GmbH contract for good cause.

6. dates

6.1 Unless expressly agreed as binding, stated delivery or performance deadlines shall only be deemed approximate and non-binding. Binding appointments must be recorded in writing or confirmed in writing by Faktor K GmbH.

6.2 If the delivery/service of Faktor K GmbH is delayed for reasons for which it is not responsible, e.g. events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays last more than two months, the customer and Faktor K GmbH are entitled to withdraw from the contract.

6.3 If Faktor K GmbH is in default, the customer may rescind the contract only after it has granted Faktor K GmbH a reasonable grace period of at least 14 days in writing, which period shall have expired to no avail. Claims for damages by the customer due to non-performance or delay are excluded, except in the case of proof of intent or gross negligence.

7. early dissolution

7.1 Faktor K GmbH is entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to exist in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days being set;
b) the customer continues, despite a written warning with a grace period of 14 days, to violate essential obligations under this contract, such as payment of a due amount or obligations to cooperate.

c) there are justified concerns regarding the customer’s creditworthiness and the customer fails to make advance payments at the request of Faktor K GmbH or to provide suitable security before Faktor K GmbH has performed its services;

7.2 The customer shall be entitled to terminate the contract for good cause without granting a grace period. Good cause shall be deemed to exist, in particular, if Faktor K GmbH continues to violate essential provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the violation.

8. fee

8.1 Unless otherwise agreed, Faktor K GmbH’s claim to a fee for each individual service shall arise as soon as the service has been rendered. Faktor K GmbH is entitled to demand advance payments to cover its expenses. Faktor K GmbH is entitled to issue interim or advance invoices or to call for payments on account.

8.2 The fee shall be understood as a net fee plus value added tax at the statutory rate. In the absence of an agreement in the individual case, Faktor K GmbH shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law in the amount customary in the market.
8.3 All services provided by Faktor K GmbH that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by Faktor K GmbH shall be reimbursed by the customer.

8.4 Cost estimates of Faktor K GmbH are non-binding. If it is foreseeable that the actual costs will exceed the costs estimated in writing by Faktor K GmbH by more than 10%, Faktor K GmbH will inform the customer of the higher costs. The cost overrun shall be deemed to have been approved by the customer if the customer does not object in writing within three working days of this notice and at the same time discloses more cost-effective alternatives. If the cost overrun is up to 10%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the Client from the outset.

8.5 If the customer unilaterally changes or discontinues work that has been commissioned without involving Faktor K GmbH – without prejudice to the ongoing other support provided by Faktor K GmbH – the customer shall compensate Faktor K GmbH for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of Faktor K GmbH, the customer shall furthermore reimburse Faktor K GmbH for the entire fee agreed upon for this order (commission). Furthermore, Faktor K GmbH shall be indemnified and held harmless with regard to any claims by third parties, in particular by contractors of Faktor K GmbH. Upon payment of the fee, the customer shall not acquire any rights of use to work already performed; rather, concepts, drafts and other documents that have not been executed shall be returned to Faktor K GmbH without delay.

9. payment, retention of title

9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This also applies to the charging on of all cash expenses and other expenses. The goods delivered by Faktor K GmbH shall remain the property of Faktor K GmbH until full payment of the remuneration including all ancillary liabilities.

9.2 In the event of default in payment by the customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in case of default of payment, the customer undertakes to reimburse Faktor K GmbH for any dunning and collection expenses incurred, insofar as they are necessary for appropriate legal action. In any case, this includes the costs of two reminders in the customary amount of at least CHF 20.00 at present. The assertion of further rights and claims remains unaffected.

9.3 In the event of the customer’s default in payment, Faktor K GmbH shall be entitled to declare all services and partial services rendered under other contracts concluded with the customer immediately due and payable.

9.4 Furthermore, Faktor K GmbH shall not be obliged to provide any further services until the outstanding amount has been settled (right of retention). The obligation to pay remuneration remains unaffected.

9.5 If payment in installments has been agreed upon, Faktor K GmbH reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (forward loss).

9.6 The customer shall not be entitled to set off its own claims against claims of Faktor K GmbH, unless the customer’s claim has been acknowledged by Faktor K GmbH in writing or has been established by a court of law.

10. property right and copyright

10.1 All services provided by Faktor K GmbH, including those resulting from presentations (e.g., suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, shall remain the property of Faktor K GmbH, as shall the individual workpieces and design originals, and may be reclaimed by Faktor Faktor K GmbH at any time – in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. The acquisition of rights of use and exploitation in respect of services provided by Faktor K GmbH shall in any case be subject to full payment of the fees charged by Faktor K GmbH for such services. If the customer already uses the services of Faktor K GmbH before this point in time, this use is based on a loan relationship that can be revoked at any time.

10.2 Modifications or adaptations of services provided by Faktor K GmbH, such as, in particular, their further development by the customer or by third parties acting on the customer’s behalf, shall only be permitted with the express consent of Faktor K GmbH and – to the extent that the services are protected by copyright – of the author.

10.3 For the use of services provided by Faktor K GmbH that goes beyond the originally agreed purpose and scope of use, the consent of Faktor K GmbH is required – regardless of whether such service is protected by copyright. For this, Faktor K GmbH and the author are entitled to a separate appropriate remuneration.

10.4 The use of services provided by Faktor K GmbH or of advertising materials for which Faktor K GmbH has prepared conceptual or design templates shall also require the consent of Faktor K K GmbH after the expiration of the agency agreement, regardless of whether or not such service is protected by copyright.

10.5 For uses according to par. 4. Faktor K GmbH is entitled to the 1. year after the end of the contract a claim to the full agency remuneration agreed in the expired contract. At 2. respectively 3. year after the expiry of the contract only half or one quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no agency fee is payable.

10.6 The customer shall be liable to Faktor K GmbH for any unlawful use in the double amount of the fee appropriate for such use.

11. marking

11.1 Subject to the customer’s written revocation, which is possible at any time, Faktor K GmbH shall be entitled to refer to the existing or former business relationship with the customer on its own advertising media and, in particular, on its Internet website by name and company logo (reference).

12. warranty

12.1 The customer shall notify Faktor Faktor K GmbH in writing of any defects without undue delay, in any case within eight days after delivery/service by Faktor Faktor K GmbH, and of hidden defects within eight days after they have been detected, describing the defect; otherwise, the service shall be deemed to have been approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.

12.2 In the event of a justified and timely notice of defects, the customer shall be entitled to have the delivery/service improved or replaced by Faktor K GmbH. Faktor K GmbH shall remedy the defects within a reasonable period of time, and the customer shall enable Faktor K GmbH to take all measures necessary to investigate and remedy the defects. Faktor K GmbH shall be entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for Faktor K GmbH. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In case of improvement it is incumbent on the client to carry out the transfer of the defective (physical) item at his own expense.

12.3 It shall also be incumbent on the Client to review the performance for its legal admissibility, in particular under competition, trademark, copyright and administrative law. Faktor K GmbH is only obliged to perform a rough check of the legal admissibility. Faktor K GmbH is not liable for the legal admissibility of content in the case of slight negligence or after fulfilling any duty to warn the customer, if the content was provided or approved by the customer.

12.4 The warranty period shall be six months from delivery/service. The right of recourse against Faktor K GmbH shall expire one year after delivery/service. The customer is not entitled to withhold payments due to complaints.

13 Liability and product liability

13.1 In cases of slight negligence, any liability of Faktor K GmbH and its employees, contractors or other vicarious agents (“people”) for damage to property or pecuniary loss of the customer shall be excluded, irrespective of whether such damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. Insofar as the liability of Faktor K GmbH is excluded or limited, this shall also apply to the personal liability of its “people”.

13.2 Any liability of Faktor K GmbH for claims made against the customer on the basis of the service provided by Faktor K GmbH (e.g., advertising measures) is expressly excluded if Faktor K GmbH has complied with its duty to inform the customer or if it was not aware of such a duty, whereby slight negligence shall not be prejudicial. In particular, Faktor K GmbH shall not be liable for any legal costs, the customer’s own attorney’s fees or the costs of publishing judgments, or for any claims for damages or other claims of third parties; the customer shall indemnify and hold Faktor K GmbH harmless in this respect.

13.3 The customer’s claims for damages shall expire six months after the customer has become aware of the damage; in any case, however, they shall expire three years after Faktor K GmbH has committed the infringing act. Claims for damages are limited to the net order value.

14. data protection

The customer agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card data, VAT number) may be used for the purpose of fulfilling the contract and supporting the customer as well as for own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of reference to the existing or former business relationship with the customer (reference).

The client agrees that electronic mail may be sent to him for advertising purposes until revoked.

This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details listed at the top of the GTC.

15 Applicable law

The contract and all mutual rights and obligations derived therefrom as well as claims between Faktor K GmbH and the customer shall be governed by Swiss law.

16 Place of performance and jurisdiction

16.1 The place of performance shall be the registered office of Faktor K GmbH. In case of shipment, the risk shall pass to the customer as soon as Faktor K GmbH has handed over the goods to the carrier it has chosen.

16.2 The place of jurisdiction for all legal disputes arising between Faktor K GmbH and the customer in connection with this contractual relationship shall be the court having subject-matter jurisdiction over the registered office of Faktor K GmbH. Notwithstanding the foregoing, Faktor K GmbH shall be entitled to sue the customer at the customer’s general place of jurisdiction.

16.3 Insofar as in this Agreement terms referring to natural persons are only stated in the masculine form, they shall refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.