General Terms and Conditions (GTC)
1. SCOPE OF APPLICATION
1.1 GTC
These General Terms and Conditions (GTC) apply to all orders, offers, deliveries and services carried out by Bluetrac AG (hereinafter referred to as "Bluetrac"). They apply to every creative phase and in particular to digitally generated products. They are deemed to have been agreed upon when the customer accepts the offer submitted by Bluetrac or when the customer accepts the delivery or service from Bluetrac. In the context of an ongoing business relationship, the GTC also apply to all future orders, offers, deliveries or services of Bluetrac without express approval.
1.2 Services
Bluetrac AG (hereinafter referred to as Bluetrac) provides services in the areas of event and media technology for events and AV installations.
1.3 Contract terms
The customer's GTC or such contractual conditions to which the customer refers in any form are only applicable with the written consent of Bluetrac. In this case, they shall apply exclusively to the contract in question.
2. CONCLUSION OF CONTRACT
2.1 Contract
A contract between Bluetrac and its customer is concluded when it is signed by both parties. Amendments or additions to the contract must always be agreed in writing.
2.2 Cost estimate
If Bluetrac has prepared a cost estimate, the contract is also concluded by the customer signing this cost estimate and these GTC and sending both documents to Bluetrac by post, e-mail (digitally signed).
3. BLUETRAC SERVICES
3.1 Service content and scope of services
Bluetrac's services are described in the contract with the customer or in the cost estimate. Changes or additions to the agreed services shall only apply if both parties have agreed to them in writing.
3.2 Duty of care
Bluetrac performs its services carefully, taking into account the interests of the customer.
3.3 Legal admissibility
The customer bears the risk of the legal admissibility of the services to be provided by Bluetrac.
3.4 Other service providers (third parties)
Bluetrac alone shall decide on the involvement and selection of other service providers (subcontractors, suppliers, artists, etc.; hereinafter referred to as third parties). It shall take into account any wishes of the customer as far as possible. Bluetrac concludes contracts with third parties in its name.
3.5 Procurements
Bluetrac acts on its behalf when procuring (e.g. third-party services).
3.6 Dates and deadlines
Dates and deadlines announced by Bluetrac are based on careful planning. However, all dates and deadlines are non-binding unless Bluetrac expressly designates them as binding in writing. Bluetrac will only postpone dates and extend deadlines in justified cases, in particular if force majeure or other circumstances for which it is not responsible make it impossible to fulfill the service on time. A delay for which the customer is responsible entitles Bluetrac to compensation for the additional costs incurred as a result of the delay.
3.7 Changes to the services
3.7.1 Change requests of the customer
The customer shall inform Bluetrac of any changes to the agreed services as early as possible. Bluetrac will inform the customer of any effects and submit an offer for the desired changes. Bluetrac estimates the consequential costs (e.g. any compensation for damages for obligations already entered into by Bluetrac towards third parties) and informs the customer of these together with a new / supplementary offer. The changes will only be implemented if the customer accepts the offer in writing within a period specified by Bluetrac. Acceptance of the offer shall result in approval of the subsequent costs associated with the change and - if a flat-rate fee has been agreed - a corresponding adjustment of this flat-rate fee (or the relevant remuneration items).
In any case, the customer shall pay in full the expenses and outlays already incurred by Bluetrac and any third parties engaged. If the customer waives the execution of the change, Bluetrac is entitled to compensation for the preparation of the change requests.
3.7.2 Changes due to Bluetrac
Bluetrac will obtain the customer's consent for significant changes to the agreed services. Only changes that reduce the scope of the services owed by Bluetrac and/or result in overall additional costs of at least 10% of the agreed remuneration are considered significant. If a flat-rate fee has been agreed, the customer's consent shall lead to a corresponding adjustment of the flat-rate fee (or the relevant remuneration item). Reduced costs do not result in an adjustment of the flat rate (or the relevant remuneration item). Bluetrac reserves the right to change or not provide services (e.g. cancel a project) due to force majeure or other circumstances for which it is not responsible. In this case, the customer is not entitled to any compensation or other claims. Bluetrac is entitled to make insignificant changes to its services on its own initiative, with the customer being informed accordingly.
4. REMUNERATION
4.1 Cost estimate
The customer shall pay remuneration in accordance with the agreement made with Bluetrac or the cost estimate approved by the customer by signing and returning it to Bluetrac. All remuneration items are denominated in Swiss francs and, unless expressly stated otherwise, are exclusive of VAT and other public charges.
4.2 Remuneration according to expenditure
Bluetrac invoices its services according to actual expenditure at the fee rates agreed with the customer, unless otherwise expressly stipulated in writing in the cost estimate.
4.3 Flat-rate costs
An agreed remuneration shall only be deemed to be a lump sum if Bluetrac expressly declares this in writing. A flat-rate fee (or the remuneration items contained therein) shall be adjusted for the following reasons:
- Additional costs due to necessary changes; necessary changes are deemed to be changes
due to force majeure or other circumstances for which Bluetrac is
not responsible, in particular due to new legal and official regulations and requirements, court and police directives. The conclusion of the contract shall be deemed the effective date;
- Additional costs due to delays for which the customer is responsible;
- Additional costs due to changes requested by the customer;
- Additional costs as a result of changes by Bluetrac, which the customer has agreed to if material;
- Additional costs as a result of instructions from the customer that certain third parties are to be involved, which Bluetrac accepted despite its right to decide exclusively on the involvement and selection of third parties;
- Additional costs due to circumstances not recognizable at the time the contract was concluded.
4.4 Payments on account
Within 10 days of conclusion of the contract, the customer shall make an initial payment on account of 50% of the agreed remuneration. Subsequently, the customer shall make further payments on account of up to 90% of the agreed remuneration in accordance with the invoices issued by Bluetrac. The date of receipt of payment (and not the date of transfer) is decisive for determining whether payment has been made on time. If payment is not made on time, Bluetrac is not obliged to provide the service. After expiry of the payment deadline, the customer is automatically in default without a reminder. Bluetrac is entitled to demand default interest of 5% per year for each day by which payment is late, as well as the reimbursement of all costs associated with the collection of its remuneration (including all legal costs).
4.5 Definitive remuneration
The customer shall pay the final remuneration in accordance with the final invoice. The above provision regarding the consequences of default shall apply mutatis mutandis. If a flat-rate fee is applied, there is no cost overrun if the (possibly adjusted) flat-rate fee is not exceeded on balance for all remuneration items. Additional expenses for one remuneration item can be compensated accordingly with reduced expenses for another remuneration item.
5. INFORMATION OBLIGATIONS
Bluetrac and the customer shall notify each other in writing as soon as possible of any circumstances that may have an impact on the contractual fulfillment of the performance obligations.
6. COMPLAINTS BY THE CUSTOMER
The customer shall assert any complaints regarding the services rendered by Bluetrac and/or third parties engaged by Bluetrac or the remuneration invoiced for them immediately in writing and with reasons, otherwise the services or the invoice shall be deemed to have been approved by the customer without reservation.
7. LIABILITY AND INSURANCE
7.1 Liability
7.1.1 Liability of the organizer (customer)
Under Swiss law, the organizer (customer) is always liable for liability claims by participants.
7.1.2 Liability by Bluetrac
Bluetrac is liable for damage caused by itself arising from or in connection with the contract with the customer, insofar as it has caused this damage intentionally or through gross negligence. Any further liability is excluded. In particular, Bluetrac shall not be liable for damages:
- due to the customer's requirement to involve a specific third party, which Bluetrac accepted despite its right to decide exclusively on the involvement and selection of third parties, insofar as the damage is attributable to this requirement;
- on the basis of instructions issued by the customer, which the customer insisted on despite a warning from Bluetrac, as well as on the basis of instructions issued by the customer directly to third parties;
- due to services provided by third parties who have a contractual relationship with the customer.
Bluetrac accepts no liability for any loss or theft at the customer's expense.
7.1.3 Liability claims for property damage
In the event of damage to tenants or property, the person who caused the damage is generally liable if this person can be identified. If the person responsible cannot be clearly identified or the organizer does not wish to prosecute the person clearly responsible, the organizer is liable.
7.1.4 Liability claims for personal injury In
the event of personal injury, the accident will be handled by the accident insurance of the person concerned. The accident
insurance of the person concerned reserves the right to take recourse against the liability insurance of the organizer (customer) or against the insurance of Bluetrac in the event of misconduct on the part of the organizer.
7.2 Insurance
7.2.1 Liability insurance of the organizer
By placing an order with Bluetrac, the customer undertakes to take out or supplement its own liability insurance with an event endorsement. Bluetrac does not assume any liability insurance for third parties (customers). The organizer sends an insurance confirmation to Bluetrac. As long as the insurance with event supplement has not been taken out by the customer, Bluetrac's obligations to perform are suspended.
8. CONFIDENTIALITY
Bluetrac and its customer and its vicarious agents undertake to treat as confidential all facts arising from or in connection with the contract between them which are neither in the public domain nor generally accessible. Confidentiality must be maintained prior to the conclusion of the contract and remains in force after the termination of the contract.
Reserved:
- a legal obligation or an official or court order to disclose information
- Bluetrac's right to mention the customer as a reference.
9. COPYRIGHTS
9.1 Copyright
The copyright to all works created by Bluetrac for the customer remains with Bluetrac. The customer is only entitled to the right to use these works after full payment of the remuneration. The end customer may only use the work for the purpose of the agreed service and for the agreed duration. The material may not be changed or passed on to third parties without written consent. The conditions for further rights of use must be regulated contractually (in writing).
9.2 License for use
Upon delivery and payment of the work, the end customer acquires a license to use the work within the agreed scope. This does not include sublicensing by the end customer to third parties or to the client - unless this is the same party - as for self-promotion.
9.3 Further use
Concepts, raw files, project files, drafts, etc. may not be used and must be returned or deleted upon request. Bluetrac does not have to hand over, show or store the aforementioned material. In the event of use contrary to the agreement, the customer is obliged to pay a relevant usage license.
10. END OF CONTRACT
10.1 Termination of contract
The contract between Bluetrac and the customer ends upon complete fulfillment. It can be terminated or revoked at any time by either Bluetrac or the customer.
10.2 Cancellation
However, premature termination of the contractual relationship (cancellation) shall obligate the customer to pay the agreed order amount in accordance with the following scale:
- up to 8 months before the event = 60% of the agreed order amount,
- up to 5 months before the event = 80% of the agreed order amount,
- from 4 months before the event = 100% of the agreed order amount.
Advance payments already made will not be refunded. Services provided by third parties must be paid in full by the customer.
10.3 Compensation for damages
Bluetrac reserves the right to assert further claims for damages, e.g. due to lost profits. Premature termination of the contract by the customer also applies if an event that is the subject of the contract is not carried out or is terminated prematurely due to circumstances for which Bluetrac is not responsible.
11. FINAL PROVISIONS
11.1 Relationship between Bluetrac and the customer
The relationship between Bluetrac and the customer is of a purely contractual nature. The parties do not intend in any way to enter into a simple partnership or any other relationship under company law upon conclusion of the contract.
11.2 Amendments to the GTC and other agreements
Bluetrac reserves the right to amend these GTC at any time. Amendments and additions to the other agreements between Bluetrac and the customer are subject to prior agreement and must be made in writing to be valid.
11.3 Legal succession and assignment of rights and obligations
The parties transfer the rights and obligations arising from their contract to any legal successors. Otherwise, the customer may only transfer rights and obligations arising from the contract with Bluetrac to third parties with Bluetrac's prior written consent.
11.4 Prohibition of offsetting
The customer may only offset claims against Bluetrac if Bluetrac has given its written consent.
11.5 Severability clause
Should individual provisions of these GTC or the other agreements between Bluetrac and the customer be invalid or ineffective, this shall not affect the validity of the contractual relationship as a whole. In such a case, the parties shall reach an agreement which replaces the provision in question with a valid provision which is as economically equivalent as possible.
12. APPLICABLE LAW AND PLACE OF JURISDICTION
Any disputes arising from or in connection with these GTC and other agreements between Bluetrac and the customer shall be governed exclusively by Swiss law, to the exclusion of the rules of private international law. The exclusive place of jurisdiction is Hinwil.