1.Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1.Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in Switzerland.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions, including the Service Specification.
Customer: the person or firm who purchases the Services from the Supplier.
Deliverables: the deliverables set out in the Service Specification produced by the Supplier for the Customer.
Force Majeure Event: has the meaning given to it in clause 11.
Intellectual Property Rights: copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
MWS Website: the web domain found at www.marketingwithsingh.ch
Order: the Customer’s order for the supply of Services, as submitted in the signed
Service Specification.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Kishore Bagavath Singh, individual residing in Switzerland, operating an online digital marketing agency through www.marketingwithsingh.ch .
Supplier Materials: has the meaning given in clause 1.1.
(b)A reference to writing or written includes email correspondence from either parties’ email account.
2.Basis of contract
2.1.The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order, by way of countersigning the signed Service Specification. Upon the last signature date, the Contract shall come into existence (Commencement Date).
2.3Any samples, drawings, videos or advertising issued by the Supplier and any or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published on MWS Website for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract nor have any contractual force.
2.4These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.6The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7This Contract shall be valid until the completion of Deliverables by the Supplier and full payment of the fees payable by Customer.
3.Supply of Services
3.1The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.2The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.3The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.Customer’s obligations
4.2If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a)without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b)the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c)the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.Charges and payment
(a)If the charges shall be calculated on a time and materials basis, the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Order;
(b)the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days; and
(c)the Supplier shall be entitled to charge an overtime rate of 25% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(b).
5.2The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
(a)Services provided by third parties required by Supplier for the performance of the Services can include but is not limited to: software product license fees, product subscription fees, domain hosting fees, payment integrations and any other fees set out by the Supplier in the Service Specification if known or in later invoices issued by Supplier.
5.3The Customer shall pay each invoice submitted by the Supplier:
(a)within 15 calendar days of the date of the invoice;
(b)in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c)time for payment shall be of the essence of the Contract.
5.4If Customer pays the invoice in full within 5 days of the issue date, Supplier will apply a 5% discount on the total invoice price.
5.5All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each month, at 5% of the overdue invoice.
5.7All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.8Customer agrees to pay a 25% non-refundable advance fee within 5 Business Days of the Commencement Date, calculated upon the overall fees set out in the Service Specification (`Advance`). For the avoidance of any doubt, the Advance cannot be refunded by Supplier if the Contract is terminated by either Party.
6.Intellectual property rights
6.1All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 6.2.
6.4The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable license to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7.Data protection
(a)Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b)Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in Switzerland including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679); Federal Act on Data Protection 1992 and the Ordinance Related to the Federal Act on Data Protection .
(c)Domestic Law: the laws of Switzerland.
7.2Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.3The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
7.4The Customer agrees for the transfer of Personal Data outside of Switzerland, subject to conditions listed in clause 7.6 (d).
7.5Without prejudice to the generality of clause 7.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Contract.
7.6Without prejudice to the generality of clause 7.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a)process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
(b)ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c)ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(a) transfer any Personal Data outside of Switzerland with the following conditions fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii)the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv)the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(b)assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(c)notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(d)at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(e)maintain complete and accurate records and information to demonstrate its compliance with this clause 7.
7.7The Customer consents to the Supplier appointing external subcontractors as third-party processors of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into an agreement incorporating terms which are substantially similar to those set out in this clause 7. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.7.
8.Confidentiality
8.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2.
8.2Each party may disclose the other party’s confidential information:
(a)to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
(b)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
9.Termination
9.1Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 1 months‘ written notice.
9.2Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a)the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(b)the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c)the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.3Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(b), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
10.Consequences of termination
10.1On termination of the Contract the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
11.Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 weeks the party not affected may terminate the Contract by giving 30 days‘ written notice to the affected party.
12.General
12.1Assignment and other dealings. Neither party may assign this Contract, or its rights and obligations, to another third party.
12.2Notices.
(a)Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
Name: Kishore Bagavath Singh
Email: singh@marketingwithsingh.ch
ii) For the Customer, as listed in the Service Specification
(b) Any notice or communication shall be deemed to have been received:
(i) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.2(b)(i), business hours means 8.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.3Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 12.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
12.4Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
12.5No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
12.6Entire agreement.
(a)The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b)Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c)Nothing in this clause shall limit or exclude any liability for fraud.
12.7Variation. Supplier reserves the right to adapt these terms and conditions at any time without notice, unless otherwise announced with immediate effect.
12.8Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Switzerland.
12.9Jurisdiction. Each party irrevocably agrees that the courts of Switzerland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
12.10Electronic Signature. Both Parties agree that a) an electronically generated signature from signature providers such as DocuSign® or Adobe® or b) a scan copy or image of a wet-ink signature placed on the Service Specification, and as exchanged via email, shall be sufficient to constitute a valid and effective signature to bind both Parties to the terms of this Contract.
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