General Terms and Conditions

1. Contractual partners, scope of application

The following General Terms and Conditions (“GTC”) apply to the provision of services by Bloom Rocket GmbH (hereinafter referred to as “Agency”).

The Agency's General Terms and Conditions apply exclusively. They apply to all offers, deliveries, and services provided by the Agency. If the Client was not able to take note of them at the time of conclusion of the contract, they shall nevertheless apply if the Client was aware of or should have been aware of the General Terms and Conditions from previous transactions.

Any conflicting terms and conditions of the Client that deviate from the Agency's General Terms and Conditions shall not apply. If the Agency carries out the delivery or service incumbent upon it in the knowledge of such terms and conditions of the Client, it thereby also does not recognize those terms and conditions of the Client that do not contradict the Agency's general terms and conditions.

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2. Subject matter of the contract

The specific contractual performance obligations of the Agency are set out in detail in the Agency's offer, which forms the basis of the contract or order. Services not listed therein shall not form part of the contract. In particular, design, advertising texts, photos, and videos shall only be owed if mentioned in the offer. In case of doubt, the client shall only commission the technical implementation of the service.

The client may offer changes or extensions to the contractually agreed scope of services during a project. If the agency does not accept such a change proposal, the agreed services remain unchanged. If the agency performs additional services in accordance with the order without a supplementary remuneration agreement, it shall receive remuneration in accordance with the price list or, if no such price list exists, the customary market remuneration.

If the client places orders with the agency verbally, these are binding. The agency is entitled to have the client confirm verbally placed orders in writing without delay. An order is deemed to have been placed if the agency, with the client's knowledge, begins to execute part of the order before agreement has been reached on all points of the order and the client does not object. An order may also be accepted by the agency through the performance of the activity if all points of an order have already been clarified. The client is also bound by the agency's confirmation of the content of a conversation in writing if the client does not object within three working days after receiving the confirmation.

The agency is entitled, at its own discretion, to perform the service itself or to use domestic or foreign subcontractors. The agency is entitled to change the Internet infrastructure used and the service providers and vicarious agents commissioned with the execution at any time, provided that this does not result in any disadvantages for the client. In principle, the client shall be informed two weeks before a change and requested to communicate any concerns about the planned change.

The agency may also provide the services using newer or different technologies, systems, procedures, or standards in the course of technical progress, provided that this does not result in any disadvantages for the client.

Services that are not to be provided by the agency itself or its subcontractors in accordance with the contract shall not become part of the contract, but shall be commissioned and remunerated by the client itself or on its behalf and for its account by the agency. This may apply, for example, to media and software licenses (e.g., stock photos, SAAS tools, data backup, website plugins), audio and video production, translations, SEO services, domain registration and hosting, and other comparable services provided by third parties.

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3. Offer, information, service

The presentation of offers by the agency on the website is not a binding offer, but merely an invitation to the client to submit an offer.

The agency's legally binding offer contains the specific services and associated prices.

The client is not entitled to the provision of technical means for correcting their order, separate information on the technical steps for concluding the contract, information on the storage of the contract, the languages available, and codes of conduct, or immediate confirmation of their order.

The agency is not responsible for specific successes and key figures, such as a certain number of contacts from new customers (leads), applications, or an increase in sales.

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4. Acceptance

After completion of projects and their transfer to the client's sphere of control, the client is obliged to accept them in writing within 5 working days, provided that they comply with the contractual specifications and the approved concept (or prototypes).

The agency is entitled at any time to submit parts of the project to the client for early partial acceptance, which the client must grant if the part is accessible for assessment in this form and complies with the specifications and the concept (or prototype). Once parts of the website have been accepted, the client may not subsequently reject them or demand that they be changed, unless there are circumstances that the client could not have recognized at the time of partial acceptance. The scope and timing of the payment obligation remain unaffected by partial acceptance and are based exclusively on the accepted offer and these GTC.

The agency reserves the right to independently complete projects that have been released to the client for acceptance after a period of 15 days without feedback. In this case, the expenses not yet remunerated will be invoiced on a pro rata basis. 

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5. Prices, terms of payment, offsetting, retention

The remuneration to be paid by the client is specified in the agency's offer. A flat rate is only valid to the extent that the services offered are detailed in the offer.

All prices quoted to businesses are net prices plus the applicable statutory value-added tax, if applicable and unless otherwise agreed.

The amount of the remuneration, any partial invoices or payment installments, and their due dates are specified in the offer. Unless otherwise agreed, the total remuneration is due in advance upon conclusion of the contract.

Remuneration for ongoing contracts is to be paid monthly in advance.

The client shall pay for any additional services not agreed upon at an hourly rate of CHF 150. Accompanying services such as user introductions, documentation, training, support, or similar are not included in the order as standard, but only form part of the contract if this has been expressly agreed upon.

Payment by the client is due immediately. In the case of partial payment, the remaining amount is due no later than one month after completion of the order. The client is advised that they will be in default no later than 7 days after receipt of the invoice. The agency has the right to demand reasonable advance payments at any time. The agency reserves the right to suspend its services if the invoice is not paid on the due date or if an advance payment is not made.

In the event of late payment, the customer will incur additional reminder fees of CHF 30 per reminder. In the event of collection measures, a collection fee of CHF 300 will be charged. From the date of default, the customer shall owe default interest at a rate of 5%. The client's right of set-off is excluded.

The client may only offset if their counterclaims have been legally established, are undisputed or have been recognised by the agency, or if the right of set-off is based on the client's rights due to incomplete or defective performance from the same contractual relationship.

The agency is entitled to exercise a right of retention for all claims arising from the business relationship with the client.

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6. External products, additional services, correction loops

Unless otherwise agreed, costs for third-party software or other products required for the implementation of the project (e.g., purchased themes, plugins, advertising budgets, advertising materials, etc.) are not included in the price. Functionalities, responsive web design, and browser compatibility depend on the performance of the third-party software product. The same applies to restrictions on any necessary third-party products, such as the functionality of advertising platforms. If third-party products are provided via an agency license as agreed, the right of use ends upon expiry of the maintenance contract and the client must then purchase the licenses at their own expense if they wish to continue operating the site.

In the event of unforeseen difficulties caused by third parties (providers, external software providers, advertising platforms, etc.) that result in additional work, the client is obliged to pay for the additional work on an hourly basis at the contractually agreed, locally customary, reasonable rate of remuneration as shown in the price list. If third-party providers, such as technology providers, who are required to create a website are no longer able to provide their services, the agency shall not be liable for this. Furthermore, the agency is under no obligation to continue the work already performed with another provider. This also applies if services provided by third parties via the agency have been invoiced to the client at an additional cost.

The integration and processing of images (e.g., cropping, retouching, converting the file format) or other media (PDFs, music, video, graphics, etc.) is not included in the price unless separately agreed. The client is responsible for ensuring that the media are provided in the correct size and resolution, in the correct file and color format. Otherwise, the client is obliged to pay for the additional processing time on an hourly basis at the contractually agreed or locally customary reasonable rate.

Unless otherwise agreed in the offer, one correction loop with one change per item in the offer is included. Reversal of desired changes, consequential changes, and functional or structural changes are to be paid for additionally by the client on an hourly basis based on the contractually agreed remuneration, as shown in the price list or customary in the locality, as are changes made retrospectively after the start of a new project phase.

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7. Performance period, force majeure

The start of any specified performance period is subject to the clarification of all technical, legal, and design issues and the timely and proper fulfillment of the client's obligations. The agency reserves the right to invoke the defense of non-performance of the contract.

Force majeure or operational disruptions affecting the agency or its subcontractors, e.g. due to riots, strikes, pandemics, epidemics or lockouts, which temporarily prevent it from delivering the service on an agreed date or within an agreed period through no fault of its own, shall alter the performance periods by the duration of the disruption caused by the circumstances. If such a disruption leads to a delay in performance of more than two months, or if the client's interest in the performance of the contract objectively ceases to exist beforehand, the client shall be entitled to withdraw from the contract.

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8. Client's obligations to cooperate, liability

The client is obliged to provide the agency with all necessary information and data (e.g., navigation structure, media to be used, legal texts, etc.) in a timely manner. This includes, in particular, all information on conflicting copyrights or trademark rights.

The client is advised that they need a privacy policy and an imprint for their website and advertising measures. The client must provide this himself; the agency is not able to draft and check such legal texts and is also not permitted to provide this service under the Legal Services Act. The client must therefore have a legal notice and a privacy policy for his website drawn up by a lawyer and use these.

The client is obliged to provide the necessary materials in a common, immediately usable digital format. The client shall ensure that the necessary rights of use are granted, in particular the rights of reproduction, distribution, and editing to the extent necessary for the realization of the project and the work of the agency. The review of legal admissibility with regard to intellectual property and copyright law can only be carried out by a lawyer and is not part of the order.

The client is advised that content on the website and in its advertising measures that originates from third parties (in particular photos, texts, plans, graphics, maps, sound recordings, videos, animations, and drawings) may be protected by copyright. If the client provides such materials, it must ensure that it has acquired all necessary rights, at its own expense if necessary. Research by the agency into conflicting trademark, copyright, or other industrial property rights is not part of the contract.

The client is obliged to provide the agency with all access to its accounts on websites, platforms, or other locations necessary for the execution of the order and to carry out the transmission securely and in encrypted form. After completion of the order, but at the earliest after termination of the maintenance and service contract, the client is obliged to change the password immediately in order to prevent subsequent misuse.

If the client provides the agency with physical or non-physical objects, in particular image, text, or audio files, which infringe the rights of third parties, the client is obliged to indemnify the agency against any claims by third parties upon first request. This includes, in particular, the costs of legal action.

The client is obliged to carry out the necessary data backups independently as part of its own security measures, in particular immediately after placing the order. The agency shall not be liable for lost data insofar as it would still be available if the client had carried out proper data backup.

The client is obliged to maintain confidentiality with regard to remuneration, details of the service description, and internal communication with third parties.

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11. Right of use

After payment, the client acquires a simple and non-exclusive right of use to any designs created by the agency.

If works are used that are subject to a CC license or an open source license, these license terms apply.

With the license, the client acquires the right to edit, redesign, or delete the design, text, or other delivered content.

‍The client agrees that the agency may name the service provided to the client as a reference on its website and in other online and offline publications. The agency may reproduce or display excerpts from its work for the client, link to the account, and publicly use the client's name, brand, and logo for this purpose. The client may revoke this consent with effect for the future for good cause.

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12. Rights in respect of defects, limitation period

The contractor's warranty is governed by the statutory provisions, but is initially limited to subsequent performance.

Within the scope of the order, the agency has creative freedom. Claims for defects in artistic designs only exist if these designs deviate significantly from the pre-contractual proposals and these deviations are not due to technical causes, lack of rights or lack of cooperation on the part of the client. If changes beyond this are desired, these shall be remunerated additionally in accordance with the contractually agreed remuneration or, alternatively, the customary local remuneration.

If the client makes changes to the service, the warranty shall lapse if the client does not refute a corresponding substantiated assertion by the agency that such a change caused the defect.

Advertising information from third parties, in particular from manufacturers of software used by the agency for the provision of services, is not binding on the agency.

If the client is a company, the client's rights due to defects in the service shall expire one year after the handover or acceptance of the service. This also applies to the client's rights to compensation or damages in lieu of performance, including for all damage to other legal interests of the client caused by the defect, unless the damage is to the life, limb, or health of the client or the agency is responsible for the defect due to intent or gross negligence.

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13. Contract documents, lien

The agency reserves all property rights and copyrights to illustrations, drawings, calculations, sketches, drafts, photographs, graphics, designs, and other documents. They are not subject to the contract, and the client cannot demand their return.

For the agency's claims against the client arising from this contract, the client grants a contractual lien on the objects and rights provided by the client to the agency for processing, in particular software, texts, images, and other objects and rights protected by copyright and intellectual property rights. This contractual lien also secures other claims of the agency against the client that do not arise directly from the order.

The client is obliged to provide the agency with its current address as long as the lien exists. Otherwise, the client cannot derive any rights from this if the agency sells the item or right in the event of a justified sale of the pledge and has only sent the threat of sale of the pledge to the last address known to the agency, provided that a new address could not be easily determined by the agency through the residents' registration office.

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14. Confidentiality, data protection

The parties shall treat the details of their cooperation as confidential.

All documents, items, or data provided by the other party shall be treated as confidential and may only be reproduced or made available to third parties for contractual purposes. They shall be returned to the other party and copies destroyed as soon as they are no longer required for the performance of the contract or the contract has been fulfilled or otherwise terminated. The same obligations apply to employees and other third parties involved.

Contract data is collected for the contract (e.g., name, address, and email address, any services used, and all other data transmitted electronically or for storage that is necessary for the performance of the contract) to the extent that it is necessary for the establishment, content, or amendment of a contract.  

The contract data will only be passed on to third parties if this is necessary for the fulfillment of the contract, if this corresponds to the overriding interest in effective performance, or if consent or other legal permission has been obtained. The data will not be passed on to a country outside the EU unless the EU Commission has determined that data protection comparable to that in the EU exists, consent has been given, or standard contractual clauses have been agreed with the third-party provider.

The data will only be stored for as long as is necessary for the purpose of the respective data processing. Further storage may be considered, in particular, if this is still necessary for legal prosecution or for legitimate interests, or if there is a legal obligation to retain the data (e.g., tax retention periods, limitation periods).

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15. Place of jurisdiction, place of performance, dispute resolution

Unless otherwise specified in the order confirmation or the contract, the place of performance is the agency's registered office.

In the event of disputes arising from the business relationship between the agency and the client, the parties are obliged to seek an amicable solution. If no agreement can be reached, they undertake to settle their differences in mediation before resorting to legal action. The possibility of summary proceedings by way of interim legal protection remains unaffected. The mere non-payment of remuneration without justification does not constitute a dispute.

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As of: April 2024

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