General Terms and Conditions (GTC)

1. General

For all contracts between Studio Thom Pfister AG and its customers, the present General Terms and Conditions (hereinafter "GTC") shall apply exclusively, unless the parties agree otherwise in individual agreements. These GTC take precedence over all previous provisions and contracts. Any conflicting terms and conditions of the customers shall only become effective if expressly and in writing acknowledged by Studio Thom Pfister AG. Any amendments or additions to these GTC require written form in all cases.

2. Offer and Contract Conclusion

The offers of Studio Thom Pfister AG are generally non-binding and subject to change, including with regard to pricing, unless the wording indicates otherwise. The offers presented by Studio Thom Pfister AG are not all-inclusive, i.e., they refer exclusively to the explicitly mentioned services excluding VAT. The offered prices remain valid for four weeks after the offer is issued upon order placement. A contract is concluded upon the binding acceptance of the offer. Every business relationship between Studio Thom Pfister AG and its customers is governed by a written contract, which specifies the scope of services and the remuneration. The nature of the services and projects is determined on a case-by-case basis based on the concepts, offers, or individual orders developed by Studio Thom Pfister AG. Any updates, additions, and changes to offers and orders must be agreed upon in writing by both parties. These are considered supplementary agreements and form an integral part of the contract. Additional efforts resulting from updates, additions, and changes to the orders will be billed as additional services according to the agreed hourly rates. Studio Thom Pfister AG is entitled to involve third parties (such as subcontractors, substitutes, etc.) at its discretion for the fulfillment of the contract.

3. Services and Fees

Unless otherwise agreed, Studio Thom Pfister AG bills for each service based on the agreed hourly rate. Services of Studio Thom Pfister AG that are not explicitly covered by the agreed fee will be billed additionally. This applies in particular to all ancillary services of Studio Thom Pfister AG. Studio Thom Pfister AG is entitled to request advance payments or partial payments at any time. Cost estimates provided by Studio Thom Pfister AG are non-binding. However, if Studio Thom Pfister AG determines that the actual costs exceed the cost estimate by more than 25 percent, it will notify the customer in a timely manner that costs exceeding this tolerance threshold are expected. Any additional orders are not covered by this provision. The cost overrun is deemed approved by the customer if the customer does not object in writing within three days of this notice and simultaneously proposes more cost-effective alternatives. In this case, the customer is entitled to withdraw from the contract upon compensation for the services already rendered. Studio Thom Pfister AG is entitled to reasonable compensation for all efforts and services that, for any reason, do not result in execution. Payment of this compensation does not grant the customer any rights. The customer must reimburse Studio Thom Pfister AG for any cash expenses incurred that go beyond the usual business operations (e.g., for courier services, extraordinary shipping costs, or travel).

4. Presentation

Studio Thom Pfister AG does not participate in free competitive presentations. For pitches (draft or concept presentations), Studio Thom Pfister AG is entitled to a reasonable fee (guideline: 10% of the expected order volume, but at least CHF 5,000.00), which at least covers the entire personnel and material costs for the presentation as well as the costs of all external services. If Studio Thom Pfister AG does not receive an order after the presentation, all of its services—in particular the presentation materials and their content—remain the property of Studio Thom Pfister AG. The customer is prohibited from using the received documents, files, etc., in any form (further). These must be returned to Studio Thom Pfister AG immediately. If the ideas and concepts presented during a presentation are not utilized by the customer for solving communication tasks, Studio Thom Pfister AG is entitled to use them elsewhere. The transfer of presentation materials, documents, files, etc., to third parties, as well as their publication, reproduction, distribution, or other use, is not permitted without the express consent of Studio Thom Pfister AG.

5. Ownership and Copyright Protection

Unless the parties agree otherwise in writing, Studio Thom Pfister AG grants the customer the textual, graphical, and content-related works for one-time use. All rights (intellectual property and performance protection rights, including source codes, InDesign files, etc.) remain with Studio Thom Pfister AG and are only transferred to the customer after full payment of the billed services. Unrealized concepts, drafts, and the like must be returned to Studio Thom Pfister AG immediately.

6. Attribution

Studio Thom Pfister AG is entitled to indicate its name on all media in an appropriate form without the customer being entitled to any compensation.

7. Deadlines and Delivery Periods

Delivery dates are determined in individual, written agreements between the parties. The customer is only entitled to assert its rights in the event of non-compliance with deadlines after granting Studio Thom Pfister AG a reasonable grace period of at least 14 days. This period begins with the receipt of a reminder by Studio Thom Pfister AG. Any liability for delay is excluded to the extent permitted by law. Unavoidable or unforeseeable events, in particular delays caused by the customer or force majeure, release Studio Thom Pfister AG from the obligation to comply with the agreed delivery dates in any case.

8. Payment and Due Date

Studio Thom Pfister AG separately states the statutory value-added tax in offers and invoices. Unless the parties agree otherwise, invoices from Studio Thom Pfister AG are to be paid within 20 days of the invoice date to a bank or postal account specified by Studio Thom Pfister AG. The customer is in default without a reminder. Studio Thom Pfister AG does not charge processing fees for the first reminder, but CHF 20.00 for the second and CHF 50.00 for the third. Studio Thom Pfister AG expressly reserves the right to take legal action. Studio Thom Pfister AG expressly reserves the right to reject checks. Associated expenses are borne by the customer and are due immediately. The customer may only offset its own claims against Studio Thom Pfister AG if these have been acknowledged in writing or have been legally established.

9. Confidentiality Obligations of the Customer / Intellectual Property Rights

Confidential information includes all information of Studio Thom Pfister AG (e.g., data, documents, drawings, samples, files, know-how, etc.) that is made accessible to the customer and is marked as confidential or is of a confidential nature. The medium on which the information is embodied is irrelevant. Oral information is also subject to confidentiality obligations. The customer is obliged to treat Studio Thom Pfister AG's information strictly confidentially and not to disclose it to third parties or make it accessible to third parties without its written consent. The customer is obliged to take appropriate measures to protect the confidential information, at least the same measures it uses to protect particularly sensitive information about its own company. Any further use, publication, or dissemination of information, images, texts, or other data that the customer receives in connection with the contractual relationship with Studio Thom Pfister AG is prohibited unless expressly approved by the latter. If the customer uses content, texts, or visual material in which third parties hold rights, the customer must ensure that none of these rights are violated.

10. Cooperation Obligations of the Customer

To the extent that Studio Thom Pfister AG requires documents, data, and other information from the customer to fulfill its contractual obligations, it will explicitly request them. The customer is obliged to provide Studio Thom Pfister AG with all available documents, data, and information immediately.

11. Warranty

Complaints regarding the quality and/or quantity of a service provided by Studio Thom Pfister AG must generally be reported in writing to Studio Thom Pfister AG within 10 days of the provision or transmission of the service and must be justified. In the case of justified and timely complaints, the customer has the exclusive right to rectification by Studio Thom Pfister AG. Any claims for damages by the customer, in particular due to delay, impossibility of performance, negligence in concluding the contract, defective or incomplete performance, consequential damages, or due to unlawful acts, are expressly excluded, unless they are based on intent or gross negligence. Studio Thom Pfister AG completely excludes both contractual and extra-contractual liability for the behavior of its assistants. The customer may not assert indirect damages and consequential damages against Studio Thom Pfister AG.

12. Liability

The liability of Studio Thom Pfister AG for any damages, regardless of the legal basis, as well as claims for reimbursement of futile expenses, is excluded, unless the cause of the damage is based on either an intentional or grossly negligent breach of duty. Studio Thom Pfister AG is not liable in particular for slight and moderate negligence. Furthermore, the liability of Studio Thom Pfister AG for any direct damages is limited to the sum of the services purchased by the customer. Compliance with legal and in particular competition, trademark, and copyright regulations (also for the solutions proposed by Studio Thom Pfister AG) is the responsibility of the customer. Studio Thom Pfister AG submits drafts of the developed templates to the customer for approval. The customer is responsible for checking the factual and legal information. If the customer approves the template, the customer assumes sole liability for the accuracy of this information. Liability for any claims of third parties against the customer that are related to the fulfillment of the contract by Studio Thom Pfister AG is expressly excluded. In particular, Studio Thom Pfister AG is not liable for legal costs, the customer's own attorney's fees, or costs of judgment publications, as well as for any claims for damages or similar claims by third parties. The customer shall indemnify Studio Thom Pfister AG if it is itself held liable in connection with the fulfillment of the contract. The customer must compensate Studio Thom Pfister AG for all financial and other disadvantages resulting from claims by third parties. Studio Thom Pfister AG assumes no liability for documents and data provided by the customer. Although Studio Thom Pfister AG regularly secures its servers (production and web servers), it assumes no liability in particular for lost data. Studio Thom Pfister AG also assumes no liability for any data misuse, cyberattacks (e.g., through the use of malware [viruses, trojans, etc.] or disabling systems via Distributed Denial of Service [DDoS attacks]) and the like. Studio Thom Pfister AG cannot guarantee non-spamming, harmless software, spyware, hackers, or phishing attacks, etc., that affect the use of the service, damage the customer's infrastructure (e.g., servers, devices, PCs, etc.), or otherwise harm the customer.

13. Force Majeure

If timely fulfillment by Studio Thom Pfister AG, its suppliers, or involved third parties is prevented due to force majeure, Studio Thom Pfister AG is released from the fulfillment of the agreed obligations for the duration of the force majeure and a reasonable start-up period after its end. If the force majeure lasts longer than 30 days, Studio Thom Pfister AG may withdraw from the contract. Studio Thom Pfister AG must fully refund any payments already made by the customer. Any further claims, in particular claims for damages due to force majeure, are excluded.

14. Severability Clause

If a provision of these GTC is or becomes invalid, the remaining provisions shall remain unaffected. The statutory provisions shall apply in place of the invalid provision.

15. Place of Performance

Unless otherwise specified in the individual contractual relationship, the place of performance is the registered office of Studio Thom Pfister AG in Bern.

16. Applicable Law and Jurisdiction

The contracts concluded by Studio Thom Pfister AG with its customers (including these GTC) are governed by Swiss substantive law, excluding the conflict of law rules of the Federal Act on Private International Law of December 18, 1987 (IPRG; SR 291). For any disputes arising from or in connection with the contractual relationships with Studio Thom Pfister AG, the courts in Bern shall have exclusive jurisdiction.
 
Bern, January 2024