These general terms and conditions of Future Connection GmbH apply to all relationships between Future Connection GmbH (“Future Connection”) and its clients. The right to agree on other provisions as part of the project agreement and/or order confirmation is reserved. Separate agreements are made for each project, stating in writing the scope of deliverables, the project phases, the acceptance procedure, compensation and deadlines. The scope, cost and deadlines for individual jobs are set in the written order confirmation (letter or email).
The internet, multimedia, design and audio/video services provided by Future Connection may include:
Initial briefings are offered free of charge and without any obligation for either party. This is followed by the submission of a written offer to the client and, if approved, a project agreement for the client’s signature. For orders, a written order confirmation will follow. Future Connection does not provide any preliminary services on a cost-free basis.
The compensation for presentations will be agreed in advance in the written confirmation. The client may use the proposals made during the presentation only with the prior written consent of Future Connection. The provisions concerning intellectual property rights in §7 below apply accordingly. If proposals are realized, fees already paid shall be credited appropriately.
The parties involved may mutually agree in writing to modify the services or payments to be made. If this is to have an effect on the previously set remuneration and deadlines, Future Connection shall draft a new offer by a fixed date. Unless otherwise agreed, Future Connection will continue to provide the services previously agreed upon until such time as the new offer is accepted or rejected.
Any changes to the services agreed upon and any concomitant adjustments to the remuneration, deadlines and other aspects of the contract shall be agreed in writing before being implemented. The remuneration shall be adjusted according to the applicable principles in place at the time the change(s) to the services are agreed upon.
If the content and/or scope of the contractual services have been significantly cut back or canceled, the parties shall agree upon adequate compensation for the lost earnings and resources provided by Future Connection.
Unless another specific place of fulfilment is agreed upon in writing by the parties involved, the offices of Future Connection shall serve as the official place of business.
Future Connection will provide the services agreed upon with the utmost professional diligence.
Future Connection shall carry out the services agreed upon, but may involve third parties, as deems necessary, and at its sole discretion, provided that there are no strong objections.
If the services to be provided require the use of IT equipment, Future Connection typically uses its own systems, provided that they are suitable to the task and unless otherwise explicitly agreed upon by the parties involved. If an acquisition of special equipment or software is necessary to carry out the contractual services, the parties involved shall agree on additional remuneration on a case-by-case basis.
Future Connection will, on request, inform the client about the progress on the project; labor-based fees shall be payable based on the ratio of progress and the costs incurred.
Future Connection will notify the client in due time of any difficulties that may place the provision of the services as agreed into question or such as might lead to inexpedient solutions. Future Connection will notify the client immediately of any exceptional circumstances that may arise.
The client shall pay the set remuneration for the Future Connection services provided.
The client shall notify Future Connection in a timely manner of any special technical requirements as well any legal, regulatory or other provisions such as they may affect the fulfilment of the agreed service and the use of third-party products. The client is also to provide Future Connection with all necessary documents early on.
Incorrect or incomplete participation on the part of the client, its employees or agents may result in added expenses for Future Connection. Future Connection will notify the customer of any such added expenses in an appropriate manner and as soon as possible. Unless otherwise agreed, these will be billed on a time and material basis.
Unless otherwise agreed, Future Connection services are billed on an hourly basis. This also applies to any cost framework (estimate) used as a basis for budget planning. If it becomes apparent in the course of the project that such framework is not realizable, Future Connection will notify the client accordingly in writing as early as possible. The provisions of §2 remain unaffected.
If a flat price has been agreed upon for the services to be provided, the amount and terms of payment shall be defined in the project agreement or order confirmation.
The following expenses are not included in the fees payable to Future Connection (whether based on labor costs or on a flat-fee basis) and must be additionally paid by the client to Future Connection directly:
Travel expenses to the client’s premises or for third parties to provide their services such as may be required in the course of normal customer support tasks.
Invoicing for services billed on an hourly basis will take place each month in arrears. Services offered in exchange for a flat fee will be invoiced as agreed in the project agreement or order confirmation. All invoices are payable without further deduction within 30 days of receipt.
The intellectual property, in particular, relating to web-based applications, software, expertise, documentation, and the remainder of deliverables generated by Future Connection shall continue to be owned by Future Connection and/or its licensors.
Unless otherwise agreed, the client is granted a non-exclusive licence (without further right to issue sub-licences) upon full payment of the set fees to use the work results as agreed for the duration of the contract. Exceptions to this rule are interfaces, designs, and other similar work results especially created for the client for which the client will receive an exclusive licence once all fees are paid.
In the case where software has been especially designed for the client and Future Connection cannot perform maintenance or make the necessary adjustments in a manner customary on the market, the client may demand that the agency surrender the source code and related documentation in exchange for adequate payment.
Unless otherwise agreed, any licence extending beyond the duration of this agreement (see §7.2 above) shall require prior written agreement between the parties involved. Future Connection is entitled to separate remuneration for granting any such licence.
Future Connection reserves the right to use ideas, concepts and procedures which it has introduced or acquired alone or together with the client to provide similar services to other clients.
Both parties, including their employees and any third parties involved, shall commit themselves to keeping confidential any and all facts and data such as are not publicly known or generally accessible, and that which has been obtained in the course of preparing and executing this agreement, whether verbally, in writing, or implicitly.
This obligation shall continue as long as there is a legitimate interest, for a period of up to 3 years after the termination of the contract.
The involved parties will agree in writing on general schedules and individual deadlines. Only deadlines that have been guaranteed in writing are binding. The parties may adjust the schedules or deadlines by mutual agreement in writing. The provisions of §2 remain unaffected.
If a party is in default, the other party may withdraw from the contract after the expiry of a reasonable grace period with a corresponding warning. Any expenses already incurred or payments made must be reimbursed accordingly.
Contractual penalties for default are to be paid if agreed upon, even if the service has been accepted without reservation. Payment of the penalty does not exempt from the above contractual obligations. However, such payment shall be deducted from any further damages owing.
The parties will agree in writing on the acceptance procedures in the project agreement. The terms for acceptance will cover deadlines, process, and qualitative criteria.
Acceptance is at the client’s discretion; Future Connection is obliged to cooperate accordingly.
Unless a specific acceptance procedure has been agreed upon, the client shall examine the work results upon delivery. If the provision of a functional system has been agreed upon, the client may require of Future Connection that the latter demonstrate that the characteristics guaranteed in writing are present.
If an acceptance procedure has been agreed upon and there appear to be no defects as a result of the testing, the client's signature on the test record shall constitute the acceptance of delivery.
If the client refuses to participate in the acceptance procedure for reasons beyond Future Connection’s control and fails to meet an extended deadline of 14 days, the delivery shall be deemed to have been accepted and the client shall become liable to the timely payment of the associated remuneration.
Future Connection accepts liability for the loyal and accurate rendering of its services and/or that its deliverable meet the characteristics agreed upon in writing, subject, however, to the provisions of §11.6 below. The terms and conditions stipulated by the respective manufacturer(s) shall apply exclusively to third-party products, taking into account any further warranty by Future Connection.
The warranty period for hidden defects shall be 3 months from the date that the work results were accepted; if the client has failed to fulfil the acceptance obligations, the warranty period shall be 3 months after delivery. The client solely has a right to remedy any defects demonstrably caused by Future Connection, excluding any statutory warranty claims and subject to §11.3 below. The client will maintain impeccable documentation of any such defects.
If Future Connection is unable to remedy the defect after the expiry of a reasonable grace period, the customer can request a reduction of the fees payable or demand reimbursement for any damages thus incurred if the defect has been caused by Future Connection, limited, however, to no more than 20% of the remuneration payable under the corresponding contract (contractual penalties included). Further warranty claims are thereby excluded, in particular any right to rescind the contract.
Warranties do not include repair or increased expenditure due to external influences, incorrect operation, or other causes that are the responsibility of the client.
The parties involved shall comply with all statutory provisions applicable to their collaboration, including the principles on fairness in advertising. The client shall bear sole responsibility for websites and content (incl. advertising, classifieds, photographs, graphics, movies, etc.). The client agrees to hold Future Connection harmless from any potential claims made by third parties.
The client is aware that no web-based applications or software will ever be 100% error free no matter how meticulous their development. Future Connection will comply with the applicable legal requirements in the development and maintenance of its work results and not knowingly infringe the intellectual property rights of third parties.
Future Connection’s liability for any damages arising from this contract, regardless of their legal grounds, is limited to maximum of 20% of the remuneration payable under the associated contract (with any penalties included) if Future Connection is unable to prove that it or any third parties it has involved in the work is not at fault.
Any liability for damages resulting from acts of slight negligence or acts made by agents is hereby waived. The liability for defects and disruptions in functionality for which Future Connection is not responsible, such as natural wear and tear, force majeure, improper handling, intervention by the client or third parties, excessive strain, unsuitable operating supplies, or extreme environmental influences, as well as for damages resulting from the client’s failure to comply with its obligations to third parties or for any indirect or consequential damages such as lost profits or third-party claims or damages resulting from the loss of data is excluded to the extent legally possible. The restrictions in this paragraph shall not apply to damage caused by intentional acts or out of gross negligence.
For the duration of the contract and for one year after its termination, the client is prohibited from directly or indirectly soliciting, hiring, contracting with, or otherwise employing any Future Connection employee without the prior written consent of Future Connection. An employee for these purposes includes any and all persons in an employment relationship Future Connection at any time during the contract period. The client shall pay Future Connection a penalty equal to the net annual salary of any employee thus solicited, with a minimum penalty of CHF 100,000, subject to the right to seek compensation for further proven damages. Payment of the penalty does not exempt the client from future compliance with this provision.
Unless otherwise agreed, this contract can be terminated by either party by providing written notice at least three months prior to the end of a calendar quarter. Terminations that do not comply with this provision are considered premature and will entitle Future Connection to collect damages.
In the event of serious breaches of contract, the parties involved may terminate this contract without notice. Claims for damages remain reserved.
In the case of termination, the compensation payable will be based on the services provided.
These terms and conditions and any amendments, supplements and ancillary agreements are only valid if in writing and signed by both parties. This requirement can only be waived by written agreement.
The transfer of the rights and obligations arising from this contract shall require the prior written consent of the other party.
If individual provisions are invalid or ineffective, the effectiveness or validity of the other provisions shall not be affected. In this case, the parties shall replace the invalid provision by another, which permissibly comes closest to the economic intention of the omitted regulation.
Unless notified to the contrary by the client, Future Connection may send the client newsletters or other information on a regular basis by email or post. Future Connection reserves the right to name the client and its project and/or work results in its marketing (portfolios, website, etc.) as well as show illustrations and/or excerpts of the same.
German law applies to this contract. The courts holding jurisdiction over the headquarters of Future Connection shall have exclusive jurisdiction to decide on disputes arising from this legal relationship.
Future Connection GmbH, April 2013