General Terms and Conditions
1 Applicability and scope
1.1 The following General Terms and Conditions (GTC) apply to all business relationships between clycbird Company (hereinafter also referred to as "clycbird") and the customer (hereinafter referred to as "Customer") for products purchased via the clycbird web platforms (hereinafter referred to as "Website/s").
1.2 clycbird provides services in the field of online marketing and the creation of moving and still images. This includes subject areas such as social media marketing, search engine advertising, Google Ads and film and photo productions.
1.3 The details of the service provision result from the service descriptions in the respective and individual individual offers.
2. Conclusion, commencement and termination of agreements between clycbird and its clients
2.1 By sending an order, in the context of clycbird, the "creation of a campaign" via the clycbird.io platform, the customer makes an offer to clycbird GmbH to purchase the contents. Receipt of the order is confirmed by an automatic e-mail from clycbird GmbH to the customer (order confirmation). This order confirmation does not constitute acceptance of the customer's offer, but merely confirms receipt and further processing of the campaign by clycbird GmbH.
The contract between clycbird GmbH and the client comes into effect with the start of the campaign, which is determined by the client and confirmed by clycbird via email.
2.2 Deliveries, services and offers by clycbird are made on the basis of these GTC unless otherwise agreed.
2.3 General and special conditions of the Customer shall not become part of the contract, even if clycbird does not expressly object to them.
2.4 Agreements between clycbird and its customers commence at the time defined in clycbird's offer or upon execution of the offer by clycbird.
2.5 Agreements between clycbird and its clients are concluded for an indefinite period, unless otherwise agreed. Unless otherwise agreed, agreements between clycbird and its customers can be terminated with a notice period of 3 months. The termination must be in writing (e-mail is sufficient). In the event of a possible termination of the cooperation, clycbird assures the client of a smooth handover of the current marketing data, insofar as such are available.
3 Special terms of service
3.1 clycbird may also engage third parties for the provision of its services or have these carried out by them (subcontracting).
3.3 Unless otherwise agreed, the client does not receive exclusivity for content or concepts created within the framework of the cooperation. Furthermore, there shall be no exclusivity in terms of time, sector or territory.
3.4 Under certain circumstances, which cannot be influenced by clycbird, clycbird GmbH allows itself to use its own social media accounts in order to ensure the execution of orders. This use takes place exclusively if no other reasonable means are available to ensure the smooth running and proper processing of the orders.
4 Changes and extensions of the scope of services
4.1 The client may at any time request clycbird to amend or extend the scope of services in accordance with the agreement already concluded between clycbird and the client. In this case clycbird will examine the changes or extensions requested by the client and, in the event of a positive conclusion, will submit a corresponding written offer to the client (e-mail suffices). Changes or extensions to the scope of services must subsequently be agreed by the parties in writing (e-mail suffices).
4.2 If clycbird realises that agreed services cannot be realised in whole or in part or do not lead to the contractual success, this will be communicated to the client in writing. clycbird will then work out alternatives for realisation including the effects on the overall project and communicate these in writing.
4.3 If no agreement is reached on a change / extension offer, the contract shall be continued as originally agreed. If this is not possible because the services cannot be realised in whole or in part without changes / extensions or do not lead to the contractual success, the parties shall be entitled to the statutory rights.
5 Warranty and liability
5.1 clycbird guarantees that the services will be provided in accordance with the service description valid at the time of conclusion of the contract and that they will essentially fulfil the functions described therein. clycbird expressly does not guarantee specific ranking positions in the results pages of search engines.
5.2 clycbird does not guarantee that the services of third parties, in particular network services or other services provided by third parties, will always be available without interruption, error-free and secure. Errors within the meaning of the warranty are exclusively reproducible errors, the cause of which lies in quality defects in the services of clycbird. Functional impairments resulting from hardware defects, environmental conditions, operating errors, inadmissible or defective data etc. are not errors.
5.3 clycbird can provide warranty by subsequent performance.
5.4 If the supplementary performance finally fails after 3 attempts despite a reasonable exclusion period set in writing (e-mail is sufficient), the Customer has the right to reduce the remuneration or to terminate the contract.
5.5 Other warranty claims are excluded.
5.6 clycbird excludes all liability to the fullest extent permitted by law.
6. Rights and obligations of the client
6.1 The Client shall take all necessary precautions to ensure that clycbird can provide its services in a timely and legally compliant manner. In particular, the Client assures clycbird that he holds all rights and necessary authorisations required for the performance of the order and that no third party rights are infringed by the order, otherwise he shall indemnify clycbird and hold it harmless from any third party claims. The Client shall ensure project management (e.g. provision of a contact person) which enables clycbird to optimally implement the order.
6.2 It is the Client's responsibility to keep the products and work results of clycbird safe after receipt and to take the necessary measures against data loss (in the case of data, e.g. by means of appropriate backup solutions). The Company declines all liability for loss of data.
7 Use of clycbird products
7.1 clycbird is entitled to all rights of use under copyright law, insofar as they are not expressly granted to the Customer by the contract or are conditional on the purpose of the contract and necessary for its fulfilment.
7.2 Upon full payment of the agreed remuneration, the Client acquires the rights of use, unlimited in terms of time, geography and content, to the works created by clycbird individually for the Client for the defined purpose and use. There shall be no entitlement to the release of source text or editable raw data.
7.3 clycbird is granted the right to use and edit the content supplied by the Client (text, graphics, photos, data, etc.) for the purpose and use defined in the context of this project. The Client must ensure for this content that the necessary rights for the use planned by the Client have been obtained and that the content complies with the statutory provisions. The Client shall indemnify clycbird against any third party claims in this respect.
8. Adjustments and cancellations
8.1 Orders for a product are binding, clycbird therefore reserves the right to claim damages in the event of adjustments or cancellations. These may consist in particular of costs for rented equipment, booked personnel or other expenses that have become useless.
8.2 If an adjustment (e.g. postponement) or cancellation is made less than two working days (48 hours) before the start of shooting (excluding Saturday/Sunday and public holidays in the Canton of Berne), 50% of the price according to the offer shall be due for payment within 10 days of the shooting date, irrespective of the actual costs incurred (contractual penalty). In case of cancellation less than three days (72h) before the start of the shoot, 35% of the price according to the offer must be paid. In the event of cancellation less than four days (96 hours) before the start of shooting, 20% of the price according to the offer must be paid. If a cancellation is notified more than seven days before the start of the shoot, clycbird shall not be entitled to compensation for loss of earnings. In addition, the client shall owe compensation for expenses already incurred by clycbird for the production of the product (material and room rental, etc.) which have become useless.
9 Defects, Inspection and Complaints
9.1 Clycbird provides its services carefully in accordance with the applicable professional rules. The services rendered and productions produced by clycbird constitute art and are subject to highly subjective evaluations. clycbird endeavours to achieve the best possible result for the client. Nevertheless, it cannot be ruled out that the client may not like the project for subjective reasons, which does not constitute a defect. The same applies to objections in connection with artistic freedom (e.g. against the concept, design, style, etc.).
9.2 The customer shall inspect the products immediately after delivery (clause 6.2). In the event of defects, objective defects shall be reported immediately in detail.
9.3 In the event of defects, clycbird shall be entitled, at its discretion, either to grant a reduction in price or to rectify the defect. Substitute performance without the explicit consent of clycbird is excluded.
11 Prices and payments
11.1 All prices quoted are in the currency mentioned in the offer and do not include value added tax (VAT).
11.2 Invoices are generally issued upon provision of the service or partial service. Unless otherwise agreed, invoicing shall be based on documented expenditure for the past month. If services of third parties, in particular click costs for search engine operators, are invoiced via clycbird, the invoice shall be issued in advance (total amount or in partial amounts).
11.3 Payments are due without deductions within 30 days of invoicing. If an invoice is not objected to within 4 weeks, the services shall be deemed to have been accepted.
11.4 Upon expiry of the payment deadline, interest on arrears of 5% p.a. will be added after a first reminder.
11.5 If services of third parties, in particular click costs for search engine operators, are invoiced via clycbird and if the client is in default with the payment of these costs, clycbird is entitled, after prior information (telephone, e-mail), to immediately pause the services affected by this, in particular ongoing keyword campaigns. Reactivation will take place after receipt of the outstanding invoices.
11.6 For services which clycbird does not provide at its place of business, expenses, in particular travel, board and lodging costs, will be invoiced separately.
12 Confidentiality
12.1 Any business and trade secrets of the other party which the parties learn directly or indirectly in the course of their cooperation shall be kept secret and - except in the context of the respective cooperation - shall neither be exploited nor disclosed or made accessible to third parties.
12.2 Information and knowledge which is generally known and easily accessible, was already known to the party concerned or was otherwise brought to its attention by third parties in an admissible manner shall not be covered by the duty of confidentiality. The duty of confidentiality shall be transferred by the parties to the employees in an appropriate manner.
12.3 This duty of confidentiality shall apply beyond the duration of any termination of the cooperation as long as there is an interest worthy of protection.
13 Applicable law and place of jurisdiction
The legal relationship between clycbird and its clients is governed by Swiss law, with the exception of the UN Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction is the registered office of clycbird in Switzerland.
Bern, 31.10.2021