1 CONCLUSION OF CONTRACT
A contract between the customer and Evention Software AG (hereafter “Evention”) is concluded with the written order confirmation from Evention.
Additions, amendments or subsidiary agreements must be made in writing and are only binding if Evention confirms them in writing.
Objections to the order confirmation must be communicated to Evention in writing within 2 days of dispatch. If there are less than 10 days between order confirmation and delivery date, the objections must be known to Evention at least 5 days prior to the delivery date.
Offers from Evention are non-binding and do not constitute a guarantee of characteristics or availability.
The delivery of goods and the provision of services by Evention takes place exclusively under application of these General Terms and Conditions.
Deviating written agreements are reserved. General terms and conditions of the customer, which Evention has not signed and accepted, are not binding.
2 PRICES AND PAYMENT CONDITIONS
The prices are net excluding value added tax. Shipping and transport costs are charged to the customer, with a minimum amount of CHF 15.00 per delivery.
Invoices from Evention are due for payment net within 30 days. Incomplete payments will be charged with a processing fee of CHF 100.00.
If the customer is in arrears with payment for a delivery or a payment on account, Evention may postpone further deliveries and retain work equipment/documents provided by the customer. If the solvency of the customer cannot be estimated, Evention may demand advance payment or security for the purchase price. The customer is responsible for any resulting delays in delivery and costs.
In the event of late payment, which occurs without further notice on the 31st day after receipt of the invoice by the customer, Evention will charge default interest of 10% p.a. and a processing fee of CHF 100.00.
Customer claims can only be offset with the written consent of Evention. Invoices are due for payment, even if the customer notifies Evention of defects.
3 RESERVATION OF OWNERSHIP
The goods remain the property of Evention until full payment has been received. The customer may use the goods in the ordinary course of business against payment or
The customer may sell the goods in the ordinary course of business against payment or retention of title, but thereby explicitly assigns to Evention any claims against third parties as security for the purchase price. In this case Evention grants the customer a revocable direct debit authorization.
4 DELIVERY BY THE CUSTOMER
4.1 WORKING DOCUMENTS
The customer remains the owner of all documents delivered by him or produced on his account which are used for the manufacture of the products. All documents produced at Evention’s expense remain the property of Evention.
Work documents must be received on time and in accordance with Evention’s specifications. Delays in delivery or additional costs due to late or non-conforming delivery to Evention are the responsibility of the customer.
The customer must retain a backup copy of all documents that he/she provides to Evention for the execution of the order. Evention is not obligated to retain production documents. Should the customer request this with regard to a repeat order, this is a courtesy of Evention at the risk of the customer. Evention can return the production documents to the customer at any time. All production masters are destroyed 6 months after delivery of the order.
4.2 PRINTED MATERIALS AND PRINTED PACKAGING
The delivered documents or even delivered printed matter must comply with Evention’s specifications. Any interventions and additional costs for non-compliant documents, data or printed matter will be charged according to time and effort. The delivery date may be delayed accordingly.
4.3 RIGHTS OF REPRODUCTION AND COPYRIGHT
The reproduction of pictures, sound or data carriers (CD, DVD and MC) is carried out under the condition and assumption that the customer owns the reproduction rights and that no illegal information is copied. It is the duty of the customer to ensure the necessary reproduction rights and to acquire any necessary license and/or copyright for all pictures, titles (audio, video) or programs (software) ordered and to ensure the legality of the contents. Evention is not responsible for the content of manufactured products. The prescribed reports to licensing or copyright companies are the sole responsibility of the customer. Any liability of Evention for violations of copyrights, intellectual property rights and other rights vis-à-vis third parties is expressly excluded. Evention has the right to demand that the customer provide proof of the corresponding reproduction rights and registration with the copyright companies as well as the legality of the content.
5 DELIVERY TO THE CUSTOMER
5.1 OBLIGATION TO INSPECT
The customer is obligated to immediately check both the order confirmation and control documents from Evention and to immediately report errors in writing with the corresponding correction instructions. If the customer waives the quality control or a written correction instruction, or if he/she gives the correction instruction incorrectly, he/she is solely responsible for this.
5.2 PRINTED MATTER AND PRINTED PACKAGING
It is expressly pointed out that, for production-related reasons, there is no colour-consistent “good for printing” in the production of printed matter and printed packaging. Only Evention digital proofs are considered to be colour binding. If the customer waives a proof or other test documents, he bears the full risk. Minor colour deviations (+/- 5-10%) compared to a proof cannot be excluded and cannot be objected to.
5.3 DELIVERY DATE
Evention strives to meet the specified delivery deadlines. However, these remain non-binding insofar as a delay in the
Delivery does not give the customer the right to withdraw from the contract, nor the right to compensation for direct or indirect damage. In the event of delayed delivery, the customer must grant Evention a grace period. If he/she wishes to refuse acceptance of services if the grace period expires unused, he/she must notify Evention of this in writing in advance. Evention is entitled to make partial deliveries. For partial deliveries already made, the performance of Evention is considered fulfilled. If the delivery of work documents or goods for fabrication by the customer is delayed, delivery will be delayed by at least the same amount of time.
Delivery dates and deliveries are effective and apply Ex Works (Incoterms 2000). Delivery will be made at the expense and risk of the customer, at the discretion of Evention, from their domicile or place of manufacture of the goods to the address provided by the customer by mail, courier or any other method chosen by Evention. Any transport damage must be reported in writing to the transport company immediately after discovery by the customer, with simultaneous information from Evention.
Evention has the right to mark goods delivered to the customer with its own company name.
5.4 OVER- AND UNDERDELIVERIES
The customer accepts the tolerances and minimum quantities customary in the industry. For example, in the case of print runs of up to 1,000 audio or data carriers (CD, DVD or MC), over- or under-deliveries of up to 10% of the ordered quantity cannot be objected to. In the case of print runs of more than 1,000 units, the tolerance is +/- 5% of the quantity ordered. This also applies to printed matter and printed packaging. The delivered quantity will be invoiced.
The customer must inspect the services provided by Evention within five days of delivery and immediately notify Evention in writing if he/she wishes to derive rights from defective contract fulfillment. In any case, the contract is considered fulfilled to the extent of partial services already realized and usable.
Evention guarantees the agreed characteristics of the goods for a period of 3 months after delivery according to the order confirmation. Defective goods will be replaced or repaired by Evention. Instead of repair or replacement, Evention may, at its own discretion, grant a price reduction corresponding to the reduction in value. If the manufacturer of the goods provides a guarantee, Evention may, in the event of defective delivery, assign its claims against the manufacturer of the goods to the customer.
If Evention processes material belonging to the Customer, Adcon warrants that it has been properly processed. The customer alone is responsible for the faultlessness and suitability of the material to be processed by Evention. The customer is obliged to give special instructions regarding handling, processing etc. before placing an order.
If the material is not free of defects or is not suitable, the customer alone is liable for all resulting damages.
Evention is liable for loss or damage to goods provided by the customer only for intentional acts.
The liability of Evention for the delivery of defective goods is – to the exclusion of all further legal remedies of the customer – limited to the above guarantees, but at most to the purchase price of the goods. Evention is not liable for consequential damages of any kind, namely loss of profit or higher purchase costs, which may result from the delivery of defective goods or late delivery.
If Evention processes material supplied by the customer (e.g. in the case of CD production), the customer alone is liable for the properties of the material, for the infringement of third party property rights and for the legality of the content. In the production of information carriers (such as CD’s, DVD’s, MC’s etc.) Evention bears no responsibility for the content. The customer ensures that he/she has all necessary rights and licenses and that he/she does not deliver content that violates laws or the rights of third parties. Claims by third parties arising from violation of copyrights, rights of use and exploitation rights and any resulting legal and consequential costs are the sole responsibility of the customer, who undertakes to indemnify Evention and any third parties called in by Evention in every case.
If a third party asserts a right that obligates the customer to indemnify Evention, the customer must assist Evention in the process following a third party notice or, at the request of Evention, represent Evention in full. In the event of a third party notice, an unfavourable result of the lawsuit will also be effective against the customer.
The customer releases Evention from all payment obligations to institutions for the enforcement of copyright claims (such as domestic and foreign collecting societies, SUISA, etc.) that may be triggered by reproduction, shipment or delivery based on the order. The customer will indemnify Adcon for all damages that may arise in this context.
7 PROHIBITION OF ASSIGNMENT
Rights and obligations under this contract may not be transferred to third parties without the prior consent of the other party. An exception to this is the authorization of Evention to call in third parties to fulfill its obligations under this contract, whereby Evention remains responsible to the customer for the contractual provision of services.
8 INTELLECTUAL PROPERTY
The customer expressly acknowledges that the intellectual property rights to all work results created within the scope of the Evention order remain with Evention.
No changes may be made to the work results without the express consent of Evention.
All drafts, proposals, sketches and expressly all variants not selected by the customer remain the property of Evention and may not be used by the customer without prior written consent from Evention. This also applies to all design-relevant designs of variants not selected, in particular forms, colors, fonts and combinations thereof that are designed for specific orders.
Upon full payment of the agreed price, the customer acquires the right to use the work results created for him/her by Evention within the scope of the order, without restriction of time or place. Any further use (e.g. adaptation for other applications) that was not intended at the time the order was placed may only be made with prior written permission from Evention.
9 SECRECY / DATA PROTECTION
The customer undertakes to maintain silence about the agreed contractual conditions (in particular the prices).
Evention and any third parties commissioned by Evention are obligated to maintain strictest confidentiality regarding all information from the sphere of influence of their customers that comes to light in connection with their services.
Evention may publish the activity for a customer for advertising purposes in its own publications (online, print) or in publications of third parties.
10 VALIDITY OF CONTRACTUAL PROVISIONS
Should individual provisions of these General Terms and Conditions or other agreements between the customer and Evention prove to be invalid or unenforceable, it is not the entire contractual relationship that is invalid, but rather the relevant provisions are to be replaced by legally valid ones that make sense.
11 APPLICABLE LAW AND JURISDICTION
The contract between the customer and Evention is subject to Swiss law. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is expressly excluded for deliveries of goods abroad.
Exclusive jurisdiction for all disputes arising from this contract is Zürich.