General Terms and Conditions of FSM Ventures GmbH

1. Scope

1.1. These General Terms and Conditions (“Terms”) apply to all business activities of FSM Ventures GmbH, Waidlistrasse 88, 8810 Horgen, Switzerland (the “Contractor”).

1.2. The Contractor’s business activities include in particular advice and support in web design and web development, marketing, branding, search engine optimisation (SEO), search engine marketing (SEM), social media strategy and management, content creation and management, user experience design (UX design), user interface design (UI design), mobile app development, e-commerce solutions, online advertising, data analysis and reporting, digital strategy development and corporate design, as agreed between the parties.

2. Subject matter of the contract

2.1. These Terms govern the legal relationship between the Contractor and the natural or legal persons who use its services (the “Client”).

2.2. The agreed scope of services is determined by the services set out in the quote accepted by the Client (the “Contract Services”). Any agreement that goes beyond the original Contract Services is deemed an agreement on changes to the services, which may lead to additional costs (“Service Changes”).

2.3. Provisions in the quote take precedence over these Terms. Unless the quote or these Terms provide otherwise, the obligations of the Contractor and the Client are governed by the provisions of the Swiss Code of Obligations on the simple agency contract (Art. 394 CO) or, where applicable, on the contract for work and services (Art. 363 CO).

3. Conclusion of the contract

3.1. The contract between the Client and the Contractor is concluded by digital confirmation of the quote, by express acceptance or acceptance by conduct of an order confirmation, or by payment of an invoice.

3.2. In any case, the contract is concluded when the Client uses the services offered by the Contractor.

4. Obligations of the parties

4.1. The Contractor performs its services with due care and to the best of its knowledge and belief. The Contractor endeavours to meet any agreed timeframe. The Contractor is entitled to involve auxiliary persons and third parties to perform the contract.

4.2. The Client must provide the Contractor with all information needed to perform the services.

4.3. The Client must also provide the Contractor, in good time and free of charge, with all data and materials needed to perform the services and with any infrastructure required.

5. Prices and reimbursement of expenses

5.1. Unless a quote states otherwise, all prices are in Swiss francs (CHF) and are subject to price adjustment for inflation by analogy with SIA Standard 118. All prices exclude any applicable value added tax and any other applicable taxes.

5.2. Regardless of whether the contract has been concluded under section 3.1, the Client undertakes to reimburse the Contractor for all expenses it has incurred as a result of the assignment. These include in particular any research costs and incidental expenses.

5.3. Where a fixed price is agreed, the fee is in principle based on the quote. Service Changes are not included in the fixed price. Such Service Changes are invoiced separately. Service Changes under section 2.2 are also not included in the fixed price. In the case of Service Changes, the procedure set out in section 4.2 applies.

5.4. Unless a quote states otherwise, the fee is based on the time and effort spent.

6. Payment and default

6.1. The Contractor’s invoices are payable within 10 days of the invoice date. If the Client does not pay within this period, it is automatically in default without any further reminder. In that case, statutory default interest of 5% per annum is owed from the date of default.

6.2. The invoiced amount may be set off against any claim the Client has against the Contractor only with the Contractor’s written consent.

6.3. If the Client is in default of payment, the Contractor has the right to refuse or suspend performance of the Contract Services without further warning.

6.4. The Contractor is entitled to assign its claims against the Client to third parties or to engage third parties for debt collection and enforcement.

7. Acceptance and rights in case of defects

7.1. For contracts in the nature of a contract for work and services, the Contractor delivers the contractually owed performance (the “Work”) by handing it over to the Client. If agreed in the contract, the Work may also be delivered in stages (“Partial Delivery”). The Client is responsible for inspecting the Work and giving notice of any defects.

7.2. The Client must inspect delivered Works without delay, including Partial Deliveries, and give notice of any defects without delay and within three days. Hidden defects must be notified no later than three days after discovery in the case of Partial Deliveries, and no later than 15 days after discovery of the defect in the case of delivery of the complete Work. If no notice is given within the deadline, the Contract Services or Works are deemed accepted.

7.3. All notices of defects must be given in a form that allows proof by text. Without such notice, a delivered Work or a delivered part of a Work is deemed accepted.

8. Liability and warranty

8.1. If a notice of defects regarding Works (see section 7) is justified and given within the deadline, the Client has a right to rectification. The Contractor must carry out the rectification within a reasonable period and at its own expense. Price reduction and rescission, where applicable, are excluded.

8.2. The Contractor is liable only for breach of a contractual obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose fulfilment the Client may regularly rely. This liability is limited to compensation for foreseeable and typical damage, applies exclusively to direct damage that the Contractor causes to the Client intentionally or through gross negligence in performing the contract, and is capped at the contract sum. Accordingly, liability for any indirect damage and consequential damage caused by defects, for slight negligence and for auxiliary persons is excluded to the extent permitted by law.

8.3. If the Contractor exercises its right to propose a suitable third party (an “Expert”) to the Client to perform all or part of the Contract Services, and the Client accepts this proposal, the Contractor gives no guarantee or warranty for the accuracy of the Expert’s information, the Expert’s qualifications or the quality of the Expert’s services.

8.4. Any further claims, in particular claims for damages due to force majeure (see section 14), are excluded.

9. Data protection

The Contractor may process and use the data collected when the contract is concluded in order to fulfil its obligations under the contract. It takes the measures required by law to secure the data.

The Client fully consents to the Contractor storing its data and using it in accordance with the contract, and acknowledges that, on the order of courts or authorities, the Contractor is obliged and entitled to disclose the Client’s information to them or to third parties.

Unless the Client has expressly prohibited it, the Contractor may use the data and results of the Contract Services for its own marketing purposes. Data needed to perform the services may also be passed on to engaged service partners or other third parties. In all other respects, the provisions on processing by processors apply.

10. Intellectual property rights

10.1. Unless otherwise agreed, all intellectual property rights in the Works and other services or Contract Services created are assigned to the Client once all Works and other services or Contract Services, as well as all outstanding claims of the Contractor, have been paid in full. Moral rights that cannot be assigned by law remain reserved.

10.2. If and to the extent that intellectual property rights cannot be assigned, the Contractor grants the Client a comprehensive licence to use the Works and other services or Contract Services created. The licence includes the right to use the Works and other services or Contract Services for any purpose, without restriction as to territory, subject matter or time.

10.3. An exception applies where the Contractor uses third-party material to create Works and provide services and does not hold all the rights to that material (for example, images from a stock image library). In that case, not all rights can be assigned, and only a sublicence can be granted, governed by the licence terms of the relevant third party or principal licensor.

11. Changes

Subsequent changes or additions to these Terms become part of the contract unless the Client objects to the amended terms within 30 days of becoming aware of them.

12. Severability

If any provision of this contract or any annex to it is or becomes invalid, this does not affect the validity of the rest of the contract. The parties will replace the invalid provision with a valid one that comes as close as possible to the intended economic purpose. The same applies to any gaps in the contract.

13. Confidentiality

The parties must treat as strictly confidential any information and facts they disclosed to each other during the contract negotiations, any information and facts specified in this contract and, in particular, the existence and content of this contract in general.

Neither party is authorised to disclose them to third parties, except to its lawful representatives and advisers, or where the other party has agreed to the disclosure in writing.

This confidentiality obligation does not apply to information that is or becomes public through no fault of either party, or where a party is required to disclose information under applicable law or in court proceedings.

14. Force majeure

14.1. If force majeure makes it impossible for the Contractor or a third party it has engaged to perform on time, the Contractor is released from the affected obligations for the duration of the force majeure and for a reasonable start-up period after it ends.

If the force majeure lasts longer than 45 days, the Contractor may withdraw from the contract. The Contractor must refund to the Client in full any fees already paid for Contract Services not yet performed.

Force majeure exists in particular in the case of events beyond the parties’ control that prevent performance of the contract, for example fire, water damage, power cuts, earthquakes, strikes, war, quarantine regulations or contact bans in connection with epidemics and pandemics such as COVID-19.

15. Applicable law and place of jurisdiction

15.1. These Terms are governed by Swiss law, excluding international treaties and conflict of laws rules.

15.2. The exclusive place of jurisdiction for all disputes in connection with these Terms is the Contractor’s registered office.