General Terms and Conditions
1. Exclusive Applicability of these General Terms and Conditions for All Present and Future Contractual Relationships.Any deliveries, services and offers of the contractor shall be made solely on the basis of these General Terms and Conditions.
These shall apply to all current and future business transactions between the customer and the contractor without any further explicit written agreement.
These conditions are considered approved and included at the time of the order placement, however, at the latest at the time of the receipt of the goods or services. The contractor will provide the customer with these General Terms and Conditions in a reasonable way in writing and shall expressly point the customer to their content and inclusion. With his signed order, the customer declares that he has been advised in writing of the application and involvement of these General Terms and Conditions and that he is aware of their contents. The customer explicitly recognises the inclusion of these General Terms and Conditions in the contract with the confirmation of his order.
Any contradicting statement of the customer or a reference to the inclusion of his own general terms and conditions or similar conditions, as well as the inclusion of these in the context of the contractual relationship, will be expressly rejected. Deviations from these General Terms and Conditions are only effective if the contractor has confirmed this circumstance to the customer in writing.
2. Subject of Agreement
The contractor shall provide an entry in the Internet to the client as agreed under the conditions referred to in the order form and in these General Terms and Conditions.
3. Order Confirmation, Written Form Requirement
Once the contractor has received a written or verbal order (in person or by phone) the contractor shall provide the customer with a written order confirmation within 5 weeks. If the customer does not receive such an order confirmation within this period, the order shall be considered as rejected by the contractor. In particular, the contractor shall be entitled to refuse the execution of an order if the customer is in legal default with a payment from a previous order. Verbal agreements must be always confirmed in writing to be effective.
4. Term of Agreement, Automatic Extension of Term
The contractual relationship with a term of 12 months is effected with the contractor‘s order confirmation. The contract can be terminated by either contracting party for the first time to the end of the term. The termination must be received by the other contracting party in writing at least 3 months before the end of the term to the following address: Leading Health Centers GmbH, Baarerstrasse 10 CH-6304 Zug / Switzerland, Fax: +41 41 790 88 49 or via Email to: info(at)leadingcenters.com.
If the contract is not terminated by either contracting party the contract shall extend automatically for another 12 months.
For the termination of the subsequent 12-month contract, the regulation in sentence 3 shall apply accordingly.
If the customer withdraws from the effective contract with the consent of the contractor, the contractor shall be entitled to demand 40% of the agreed compensation as a lump sum to cover costs or for damages, unless the customer can prove that, in the specific case, the contractor has incurred lesser damage due to the withdrawal.
The contractor shall be entitled to rescind the assigned order if its content or technical form is in breach with the applicable regulations in a significant way, or if there is not enough individually available space.
6. Offer without Engagement
The offers of the contractor are subject to confirmation and non-binding. Statements of acceptance and all orders must be confirmed by the contractor in writing to be legally effective. The same applies to additions, amendments or collateral agreements.
Any drawings, illustrations, measurements, weights or other performance data shall be binding only if this has been expressly agreed previously in writing.
The employees, contractors and other personnel working within the organisational area of the contractor are not authorised to enter into any verbal collateral agreements, make promises or provide verbal warranties of any kind with the customer, or to assure the customer of any product or performance characteristics which go beyond the content of the written agreement. In this respect, any verbal statements must be a confirmed in writing by the contractor to be effective.
7. Release date, release period
The release date planned for each project is defined as a variable. A release date established with the customer is not binding.
Even if a written confirmation has been provided, the release date can be delayed, if necessary, by up to 6 months. The customer cannot enforce any claim to compensation if a service cannot be provided at the time and date non-bindingly advised to the customer, or if the beginning of its execution is significantly delayed for reasons are beyond the control of the contractor.
8. Preparation of a presentation by the contractor
The contractor shall create an appealing presentation suitable for publication and paid for by the customer according to the customer‘s specifications. Any graphical work or data which the customer provides to the contractor as a condition for these services to be rendered, must be in digital form and in an impeccable condition, so they can be processed without any difficulties . The contractor has no obligation to check such submitted works.
Fine-drawing artwork, measurements, colour patterns and/or colour or placement specifications are binding for the contractor. With regard to the implementation of certain colours after HKS, RAL or Pantone in photographic technology, the contractor guarantees a colour accuracy of up to 60%.
As far as the contractor does not receive any detailed placement specifications from the customer, they shall be determined by the contractor at his discretion, in the suspected interest of the customer. If the customer does not provide the necessary documents and data to the contractor or does not provide them in time, the contractor shall be authorised to compile and to create the agreed entry at his discretion on behalf of the customer when it is needed. In this case, the customer remains obligated to full payment and/or compensation.
If the customer has created an own presentation suitable for publication and has sent it to the contractor, the contractor reserves the right to re-create, adapt or improve the submitted presentation after consultation with the customer and according to the customer's specifications, as far as it is required. Any cost of subsequent changes of the originally agreed form of the entry, additional costs for special services and additional costs for more expensive versions shall be borne by the customer; however, the payment shall not be less than 80.00 Euro net per hour plus the value added tax as applicable. We reserve the right to reasonable, minor changes in the extent and design of the media (Internet) considered acceptable for the customer.
9. Transfer of rights, copyright
The customer transfers to the contractor the exclusive right to copy or distribute the replies to the questionnaire developed by the contractor in any form and to any extent.
All drawings produced and works designed by the contractor, as well as any documents produced by or on behalf of the contractor are copyrighted property and subject to the sole exploitation rights of the contractor. The customer is not authorised to make these works available to any third party without the written consent of the contractor.
10. Deficiencies of the publication
The contractor shall endeavour to carefully execute the assigned task at any time. If, nevertheless, the ordered entry has not been totally or partially realised by the contractor or changed in its content to the significant disadvantage of the customer, the customer must submit a notice of defects immediately after receipt and/or access to the "Leading Centers media", however, not later than within 4 weeks, and point it out to the contractor if it should be regarded as significant.
11. Publishing in other media and directories
The customer agrees that his submitted order data (entries, advertisements, pictures, films etc.) or works designed or manufactured by the contractor can be published also in other media, notably with Leading Centers partners, during the term of the contract. The customer can obtain an overview of the cooperation partners of the contractor at any time via the contractor’s website. The customer fully agrees that his entry referred to above can be recorded in electronic directories and used for information purposes, and possibly processed and modified in the context of integration. The customer agrees that his entries or their contents can be published in an electronic directory and other information services of the contractor, irrespective of a possible dissent to the publication of the free dataset in electronic directories (after s.104 et seq. TKG et alia).
12. Responsibility for the entry, claims of third parties, indemnification
The customer is exclusively responsible for all and any information, data, and works submitted to the contractor, in particular for their actual and textual accuracy. The client declares that all provided information, data and works are free of third party rights.
Any liability in case of the assertion of foreign rights of third parties (particularly holders of titles) to the contractor bears only the customer. In the case of the assertion of claims by third parties, in particular due to an infringement of competition or copyright regulations, the customer shall indemnify the contractor against liability. The entry or display may relate only to the customer’s field of responsibility.
13. No guarantee for positioning, exclusion of competitors
No guarantee can be given for the inclusion of ads on certain places in "Leading Centers media", unless the contractor has confirmed this to the customer in writing. An exclusive position of the customer or the exclusion of competitors cannot be granted to the customer, in the interest of a uniform and equal treatment of all stakeholders.
14. Limited liability, statute of limitations
If the customer asserts legitimate claims for defects against the contractor for a paid-for presentation created by the contractor, the customer can reduce the invoice amount appropriately, i.e. depending on the severity of the proven defect. Any further claims, such as for the insertion or sending out of correction notices, are excluded. In case of slightly negligent breaches of duty, the liability of the contractor is limited to the damage considered as typical and predictable in view of the contractual use of the service. This also applies to slightly negligent breaches of duty of the legal representatives and vicarious agents of the contractor. If the customer is a business owner, the contractor shall not be liable for slightly negligent violation of non-essential contractual obligations. The liability for the absence of guarantees or of guaranteed properties, as well as the liability under the Product Liability Act, shall remain unaffected.
The above limitations of liability do not apply if the contractor is accountable for and guilty of an act of gross negligence (e.g. fraudulent behaviour) as well as in the event of damage to body and health or loss of life of the client attributable to the contractor (§ 199 ABS. 2 BGB). A contributory negligence of the customer, such as insufficient provision of assistance services, organisational mistakes or insufficient data backup, is not attributable to the contractor.
The contractor shall be liable for the replacement of data only as far as the customer has performed all usual and reasonable data backup measures corresponding to the current state of the art, and has so ensured that the data from data material held available in machine-readable form can be reconstructed and/or restored with reasonable effort.
Claims for damages of the customer due to a defect are subject to the general limitation period from the date of delivery of the product or work which was created, modified or customized as ordered.
The customer shall indemnify the contractor from all disadvantages that could incur to the contractor, whether intentionally or through negligence, by third parties due to harmful actions from the organisational area of the customer. The customer undertakes to fully reimburse the contractor for any damages in the case that action should be taken against the contractor (by third parties) due to such an event and that the contractor has to produce replacement or damages in whatever form.
15. Return of documents, templates
Any templates, works, and print documents supplied by the customer to the contractor will be returned only on special and explicit instruction of the customer and at his expense.
The contractor’s duty to preserve records ends no later than three months after the 1st day of the publication of the online presentation, unless another agreement has been made between the parties expressly in writing.
16. Due date of compensation
The agreed charges (prices) are regularly due upon receipt of the invoice unless another written agreement has been established between the parties. If the customer has given a direct debit mandate, the invoice amount shall be debited by the contractor from the specified account of the customer not earlier than five working days after receipt of the invoice. If the customer has not given a direct debit mandate, the invoice amount must be credited to the account of the contractor specified in the invoice at the latest on the 10th day after receipt of the invoice.
17. Changes of general terms and conditions, description of services and prices
If the contractor intends to modify the general terms and conditions, the specifications of services, or the prices, the contractor shall make the client a written offer to amend the contract. If the customer does not object to the offer, or does not object in the required form and timely, the offer is considered accepted. In this case, the amendment of the contract shall become effective one month after the receipt of the offer. However, if the customer objects against the offer in the proper form and timely, the contract shall remain effective at the previous conditions without any modifications.
The objection of the customer is only considered in the proper form and timely, if the objection is submitted in writing and is received by the contractor within one month after receipt of the offer. In the offer, the contractor shall expressly point out the requirements to the objection and the legal consequences as described below.
If the customer has objected in proper form and timely, and if the contractor has thereupon communicated to the customer in writing that a continuation of the contract without the modification of the contract cannot be expected from the contractor for technical or economic reasons, the customer may terminate the contract within one month from receipt of such communication. The termination must be in writing. If the customer does not terminate the contract, or does not terminate it in the proper form and timely, or does not expressly require in writing within one month after receipt of the communication that he insists on the performance of the unchanged [T1]contract, then it shall be considered as a permanent waiver of the customer as to the performance which to provide the contractor considers unreasonable according to the communication sent. In this case, the contractor shall be entitled to carry out the order in such a way as if the amendment of the contract had become effective.
If the termination of the customer is submitted in proper form and timely, the contract ends with the expiry of the month in which the notice is received by the contractor. In his communication, the contractor shall explicitly point out the requirements to the termination notice and the above provision, as well as the legal consequences.
In case of a change of the legal VAT rate and in case of a proven change in wage costs, the contractor shall be entitled to adjust the prices accordingly.
18. Note on data storage after German Data Protection Act (BDSG)
The customer is pointed to the fact that the contractor, as a non-public entity according to section 1 para 2 no. 3, section 3 paragraphs 1 and 2 no. 1, section 4 para 1, section 28 para 1 page 1 numbers 1 and 2 BDSG, collects, processes and uses personal data of the customer, namely limited to all data necessary for the performance of the relevant agreement, for their own business purposes. Both personal and voluntarily provided additional data are processed in files and/or databases under application of computers for purposes of the performance of the contract (entering into, amendments to or termination of the contract, settlement of charges, payment history of the customer).
The customer expressly agrees with the collection, processing and use of his personal data. Data shall not be passed on to third parties, unless the customer has expressly agreed with it or the contractor is obliged to do this on the basis of statutory provisions, or this is expressly permitted on the basis of a legal provision. The use of these data for promotional or similar activities (also over the phone) will have to cease if the customer withdraws his consent in whole or in part. A withdrawal is possible at any time in writing or electronically, e.g. by email addressed to the contractor; the withdrawal can be also limited to the purposes of a single contract or with respect to the way how the customer wants to be addressed. The customer can find the address for the withdrawal in the contract documents.
19. Place of fulfilment, place of jurisdiction
Place of jurisdiction for all disputes arising out of or in connection with this contract shall be the seat of the contractor (Zurich/Switzerland). This also applies if the customer has his general place of jurisdiction in Switzerland or if his residence, his place of business or his habitual abode is not known at the time of the action. Place of performance is the registered office of the contractor.
20. Choice of law
Only Swiss law shall apply also to contracts with foreign customers, excluding the UN Convention on contracts for the international sale of goods (CISG).
21. Severability, partial invalidity
If a regulation is entirely or partially invalid, or not actually feasible, the remaining contract shall remain effective. The contracting parties undertake to replace ineffective or unenforceable provisions by such legally permissible and practicable provision or regulation which match, as closely as possible, the economic and actual interests of the parties. The same applies in the case of a significant contractual loophole.
Additional terms and conditions to "Online Packages"
1. For booked advertising entries (upgrade packages) in electronic "Leading Centers media", only the preceding general terms and conditions of the contractor shall apply unless otherwise regulated in these additional terms and conditions to "Online Packages".
2. Orders placed by way of electronic bookings via online traffic take effect with the automatic receipt of the order confirmation.
The contractor can withdraw from their obligations with regard to the electronic "Leading Centers media", if the contractor is not able or no longer able to perform or to continue with the project, in particular for technical reasons. If the contractor withdraws any advance payments already paid by the customer to the contractor shall be refunded to the customer in part (minus of proportional remuneration for services rendered up to this point) or in full (no implementation / no service rendered)[T2].
4. Copyright and rights of third parties
The customer assures the contractor in writing that the documents and/or works (e.g. photos, brochures, etc.) passed on to the contractor, as well as such documents and/or works to which the customer provides access to the public through links on the customer‘s website are free of third party rights, in particular of third party copyrights.
5. The customer shall indemnify the contractor in so far from all and any claims which third parties may raise against the contractor. If a third party (claimant) takes recourse to the contractor in connection with the online record, the contractor can remove the customer’s online advertising entry and/or the link from the online portal, until the customer proves by appropriate documentation that the claimant does no longer have any claims against the contractor. The customer bears any costs of processing. A refund or reduction of the agreed payment amount for the service "Online Packages" shall not incur.
6. Other utilisation
The contractor may use the online advertising orders indefinitely for other electronic media, including telephone information services, and publish them. With the release of his datasets on "Leading Centers" the client thereby agrees that these data can be used by "Leading Centers" for promotional purposes. The customer can object against any such use at any time by notice to the company Leading Centers GmbH.
7. Limited liability
The contractor ensures, within the frame of the foreseeable requirements, a state-of-the-art electronic reproduction of the advertisement. The customer is aware that, with the current state-of-the-art, it is not possible to create a program that is completely free of errors. A liability for minor error is excluded. An insignificant error in the display exists in particular if it is caused by:
- Using an unsuitable representation and/or hardware (e.g. browser), or
- Failure of the communication networks of other operators, or
- Computer failure as a result of system failure, or
- Incomplete and/or not updated offers on so-called proxies (cache), or
- Failure of the ad server.
The contractor shall be liable only in the case that the customer’s online presence is absent for more than 5% of the total period booked for reasons attributable to the contractor. The liability is limited to a free extension of the customer’s online presence for a period matching the number of days during which the failure incurred, after the ending of the contract, or to facilitate adequate reasonable and comparable online replacement advertising for the customer. Any further liability is excluded.
As far as the implementation and fulfilment of an order cannot be facilitated or fails for reasons not attributable to the contractor (such as due to software conditions or for other technical reasons), in particular due to computer failure, force majeure, strikes, on the basis of statutory provisions, troubles with third parties (e.g. other providers), network operators or service providers, or for comparable reasons, the order shall be carried out at a later point in time, or the customer shall be given the option to place surrogate advertising online which must be appropriate, reasonable and comparable. If the order is fulfilled within an appropriate period of time acceptable for the customer, after the disturbance had been removed, the contractor's claim for payment shall remain unaffected.