Terms & Conditions
General Terms & Conditions of Popeye Ltd Design & Communication | Insight Architecture, with its registered office on Wehntalerstrasse 158, 8057 Zurich, Switzerland, registered at the Commercial Register of Canton Zurich, Switzerland CHE-104.689.493.
Article 1 Definitions
The following terms are used in these General Terms and Conditions:
- Contractor: Popeye Ltd Design & Communication
- Client: each legal entity or natural person, acting in the course of a company or profession or otherwise, who instructs the Contractor to carry out any work activities.
- Agreement: agreement between Client and Contractor.
- Production date: the (first) date when, pursuant to the Agreement, the event to be organised or performed by the Contractor will take place.
- Consumer: a natural person not acting in the course of any company or profession.
Article 2 Applicability of these Terms and Conditions
1. These Terms and Conditions apply to each offer and each Agreement the Contractor has declared them applicable to, insofar as these Terms and Conditions have not been explicitly departed from by parties.
Article 3 Offers
1. Exploratory talks as well as offers prepared by the Contractor are free of obligations, unless otherwise decided during the exploratory talks.
2. Unless otherwise stated, the prices stated in the offer are exclusive of VAT/MwSt, transport costs and travel and accommodation expenses which need to be incurred for performing the assignment, if any.
3. The Contractor has the right to pass on to the Client any interim cost price changes as a result of changes in legislation or governmental or non-governmental levies. The Client has the right to dissolve the Agreement provided that the Contractor does indeed proceed to pass on interim changes in the cost price when the cause of these changes are non-governmental and take place within three months of concluding the agreement. Passing on the costs of foreign currency occurs according to the exchange rate in effect on the invoice date.
Article 4 Performing the Agreement
1. The Contractor will perform the Agreement according to its best judgement and ability and in accordance with the requirements of professional standards.
2. The Client will ensure that all details of which the Contractor indicates these are required or of which the Client in all reasonableness should understand these are required for performing the agreement will be made available to the Contractor in good time. If the details required for performing the Agreement have not been made available to the Contractor in good time, the Contractor has the right to suspend the performance of the agreement and/or to charge the Client the additional costs resulting from the delay according to the customary rates.
3. The Contractor is not liable for any damage of whatever nature due incorrect or incomplete details provided by the Client, unless the Contractor should have been aware of this incorrectness or incompleteness.
4. If it has been agreed that the Agreement will be implemented in phases, the Contractor may postpone those parts belonging to a next phase until the Client has approved the results of the previous phase in writing.
Article 5 Representation
1. If and insofar as a proper performance of the Agreement requires such, the Contractor has the right to have certain work activities carried out by third parties. Involving third parties takes place in consultation with the Client as much as possible.
2. In the event that the Contractor is forced to conclude agreements with third parties in order to properly perform the Agreement, he will act as the indirect representative of the Client. The Contractor has the right to charge a mediation fee for this.
3. The Contractor will try, according to principles of reasonableness and fairness, to observe obligations from the agreements as referred to in the previous paragraph, without however being obliged to start legal proceedings.
Article 6 Modifying the Agreement
1. If during the performance of the Agreement, it emerges that for a proper performance it is required to change or supplement the work activities to be carried out, parties will modify the Agreement in mutual consultation and in good time.
2. If parties agree that the Agreement will be modified or supplemented, this may influence the time of completion of the performance. The Contractor will notify the Client of this as soon as possible.
3. If the modification or supplementation of the Agreement has financial or qualitative implications, the Client will be notified of this by the Contractor beforehand. If a fixed price or a fixed fee was agreed, the Contractor will indicate to what extent such price or fee will be exceeded due to the modification or supplementation of the Agreement.
4. In contravention from paragraph 3, the Contractor will not be able to charge further costs if the modification or supplementation is the result of circumstances that can be attributed to her.
Article 7 Confidentiality
Both parties are bound to keep confidential all classified information they have received from each other or from other sources in the context of the Agreement. Information is classified if such has been communicated by the other party or if such ensues from the nature of the information.
Article 8 Intellectual property
1. Without prejudice to the provisions in Article 7 of these Terms and Conditions, the Contractor reserves the rights and powers vested in him under the Copyright Act.
2. All documents provided by the Contractor, such as reports, advice, designs, drafts, drawings, software etc., are intended to be used by the Client only and may not be reproduced, made public or disclosed to third parties without prior permission by the Contractor.
3. The Contractor also reserves the right to use the increased knowledge resulting from performing the work activities, insofar as no confidential information is released to third parties.
Article 9 Cancellation
1. If the Client is not acting in the course of a company or profession, the following applies:
a. Both parties may terminate the Agreement at all times. Cancellation by the Contractor should be supported with reasons.
b. If the Client cancels the assignment after the Agreement is concluded, the below percentage of the agreed amount - as stated in the Agreement - is payable, depending on the time of cancellation;
- 25% on cancellation after the Agreement is concluded
- 50% on cancellation within 60 days of the delivery date
- 75% on cancellation within 30 days of the delivery date
- 100% on cancellation within 14 days of the delivery date.
If cancellation takes place over 60 days before the delivery date, the Client owes the Contractor the organisational fee explicitly stated in the Agreement.
2. If the Client is acting in the course of a company or profession, the following applies:
a. Both parties may terminate the Agreement at all times, provided they do so in writing stating reasons.
b. Paragraphs 1 b. and 1 c. shall apply mutatis mutandis.
Article 10 Dissolving the Agreement
The claims by the Contractor on the Client are immediately due and payable in the following cases:
- after concluding the Agreement, circumstances become known to the Contractor that give him grounds to fear that the Client will not fulfil its obligations;
- if the Contractor, upon concluding the Agreement, requested the Client to provide security for observing the Agreement and this security has not been provided or is insufficient. In such cases mentioned, the Contractor is authorised to suspend further performance of the Agreement or to dissolve the Agreement without prejudice to the right to claim compensation.
Article 11 Faults and time limits for complaints
1. Complaints about the work activities carried out should be communicated to the Contractor in writing by the Client within 8 days after their discovery, but no longer than 8 days after completion of the relevant work activities.
2. If a complaint proves to be well-founded, Contractor will carry out the activities as agreed, unless this has become pointless for the Client in the meantime. This should be made known by the Client. If carrying out the services as agreed is no longer possible or useful, the Contractor will be liable only within the boundaries established in Article 14.
Article 12 Payment
1. The Contractor reserves the right to require an advance payment from the Client of no more than 100% of the agreed amount as stated in the Agreement. Any advance payments will be deducted from the final invoice.
2. Payment should be made within 14 days of the invoice date. After expiry of this term, the Client is in default. From the moment The Client is in default of the amount payable, interest shall be due equal to the statutory interest plus two percentage points with a minimum of 12% per annum.
3. In the event of liquidation, bankruptcy or insolvency, or moratorium of the Client, the Client’s obligations will be immediately due and payable.
Article 13 Collection costs
1. If the Client is in default with observance of one or more of his obligations, all reasonable costs in order to obtain compliance extrajudicially are at the expense of Client. In any case, the Client will owe 15%. If the Contractor demonstrates to have incurred further costs which were reasonably required, these costs will also qualify for reimbursement by the Client.
2. The judicial costs incurred by the Contractor are payable by the Client in all instances, barring where the Client can show these are unreasonably high. This applies only if the Contractor and Client are conducting legal proceedings in relation to an Agreement to which these Terms and Conditions apply and a judicial decision has become final and conclusive, finding fully or predominantly against the Client.
Article 14 Liability
1. The Contractor’s liability is limited to the amount of the (reasonably to be expected) payable price and/or the (reasonably to be expected) fee to be paid by the Client. Where assignments are concerned with a duration of longer than six months, liability is further limited to the payable price and/or part of the fee of the last six months.
2. The Contractor shall not assume any liability on behalf of the Client, its participants, guests, employees etc. for personal damages or for property damages caused during the tour, nor shall Insight Architecture be held liable for damages sustained by third parties.
3. Furthermore, the Contractor’s liability is limited to direct damage resulting from not, untimely or inadequately observing the Agreement. Furthermore, the Contractor is in no way whatsoever liable for consequential damages, such as loss of earnings.
4. The limitations of liability included in these Terms and Conditions do not apply if the damage can be attributed to gross misconduct by the Contractor or his managing subordinates.
5. The Client should without delay and not more than 8 days after the Client became aware or should have become aware of the damage notify the Contractor of any claim for compensation.
6. The limitation period of any judicial claim for compensation by the Client amounts to 18 months and commences on the day following the day the event which caused the damage took place.
Article 15 Force Majeure
1. Force Majeure is understood to mean circumstances preventing the observance of the obligation and which are not attributable to the Contractor. These circumstances (if and insofar these circumstances prevent or unreasonably hinder observance) shall include: strikes; a general lack of required materials and other items or services required to realise the agreed performance; unanticipated delay at suppliers or third parties the Contractor is dependent upon; the failure of an artist to appear due to illness; general transport problems.
2. The Contractor also has the right to invoke force majeure if the circumstances which hinder (further) observance occur after the Contractor should have observed its obligations.
3. The Contractor has, if possible, the right to effect a reasonable substitute performance. The Client has, in the case the Contractor effects a reasonable substitute performance, no right to a deduction of the agreed price and/or agreed fee. Furthermore, the Client does not have the right to dissolve the Agreement.
4. During force majeure, the Contractor’s obligations are suspended. If the period in which the Contractor’s obligations cannot be observed lasts longer than one month, both parties are authorised to dissolve the Agreement without an obligation to pay compensation arising.
5. If the Contractor has already observed part of its obligations or can observe only part of its obligations upon commencement of the force majeure situation, it has the right to invoice the performed part and/or the performable part separately and the Client is obliged to pay the invoice as if it were a separate contract. Such, however, does not apply if the part performed and/or the performable part has no independent value.
Article 16 Settlement of disputes
1. In contravention of the statutory rules regarding the authority of the civil courts, if the court has jurisdiction, each dispute between Client and Contractor shall be settled by the Zurich District Court, Switzerland. The Contractor remains authorised to summon the Client before the competent court according to the law or the appropriate international treaty law.
2. If the Client is a consumer or if in its company or practice (including the Client itself) three or fewer persons are employed, the Client has the right for one month after Contractor has invoked this provision in writing, to elect settlement of the dispute by the competent court according to the law.
Article 17 Applicable law
All legal relationships between Contractor and Client are governed by Swiss law.
Article 18 Modification of the Agreement
The Contractor is authorised to modify these Terms and Conditions. These modifications shall enter into force at the time announced for that purpose. The Contractor shall send the modified terms and conditions to the Client in good time. If no time of entering into force has been announced, the changes will enter into force towards the Client at the moment the changes are announced to the Client.