Terms and Conditions smarkee
1. Applicability and scope
The following General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all business relations between Harder Marketing & Communication GmbH (hereinafter referred to as “the supplier”, “us” or “we”) and the customer (hereinafter referred to as “customer” or “you”) for products with digital content (hereinafter referred to as “products”) purchased via our website and webshop (hereinafter referred to as “smarkee”).
The website and online store smarkee.ch are operated by:
Harder Marketing & Communication GmbH
Heinrichstrasse 267, 8005 Zürich
[UID-Nr .1] CHE-106.953.152
Phone: +41 44 877 87 87
Email: digital@smarkee.ch
Individual agreements concluded with the customer shall take precedence over these GTC. Conflicting conditions of the customer are not recognized.
The provider reserves the right to change these GTC at any time. All changes become effective with the publication of the new GTC on the website. The relevant point in time for the applicability of the valid GTC is the date of submission of the binding order to us when purchasing a product.
Please read these GTC carefully before placing an order. By placing an order for our products, you agree to the following terms and conditions as well as our privacy policy and declare that you are authorized to enter into legally binding contracts and are at least 18 years old.
2. Digital products
Digital marketing services are offered in our online store. These services can be purchased as described in the online store.
3. Conclusion of a purchase agreement
The presentation of the products in the online store does not constitute a legally binding offer, but only a non-binding online catalog or a non-binding invitation to the clientele to order the product in the online store. The Provider expressly reserves the right to change the products themselves as well as the contents, such as pictures, assortment, prices and the descriptions of the products, at any time and without prior notice. Illustrations, Pictures, brochures, advertisements and other information in connection with our products are for information purposes only and are not binding on the supplier.
The customer can place a binding order for the products selected by him via the online store. The customer can put the products he selects into the “shopping cart”. This is not yet considered a binding order. Before sending the order, the customer can change and view the information at any time, identify any input errors and correct them if necessary before the binding final submission of the order.
An order confirmation will be sent to the customer immediately and automatically by e-mail. This confirmation e-mail contains the data of your order and our terms and conditions accepted by you during the ordering process. The confirmation email serves only as information that we have received your order. The automatic order confirmation does not constitute a purchase contract. By submitting the order, you confirm that you have read the GTC and agree to them without reservation. We recommend that you print out or save the GTC on your computer for the purpose of online ordering and your documentation.
After you have placed a non-binding order, the Supplier is free, at its sole discretion, to either accept the order or reject it by sending a corresponding notification by e-mail and without assuming liability towards you or third parties. Reasons for rejecting an order may include, for example, if a product is no longer available, if we cannot obtain authorization for the customer’s payment, or if there is reason to believe that the customer is acting in violation of these TOS, individual contracts, fraudulent or other criminal activity, or for any other good cause.
Reasons for rejecting an order may include, for example, if a product is no longer available, if we cannot obtain authorization for the customer’s payment, or if there is reason to believe that the customer is acting in violation of these TOS, individual contracts, fraudulent or other criminal activity, or for any other good cause. Only then will the customer receive the binding order confirmation with the request for payment of the total amount or partial payment before the start of the order. Any commercial distribution or resale of our products is strictly prohibited.
4. Availability and reservation of performance for non-deliverable products
All information about the availability of our products is preliminary and approximate. They do not constitute binding or guaranteed information. Liability for unavailable products is expressly excluded.
Our digital products are generally available as long as they are offered in the online store. If, while processing your order, the Supplier discovers that the digital products you ordered are not available, for whatever reason, you will be informed immediately. In this case, no contract for the unavailable products is concluded.
5. Prices and other costs
Our products and prices are the same as those indicated on the website. All prices are in CHF (Swiss Francs) excl. the statutory value added tax (VAT). The Total price of the order, including all possible additional costs and the VAT to be paid will be displayed at the end of the order process.
With the binding order confirmation you declare that you agree with the total price for the ordered products. After the binding order confirmation, the price can no longer be adjusted, unless changes are made to the scope of delivery, which are requested by both parties in agreement and the order confirmation is adjusted accordingly.
The provider reserves the right to change the prices at any time. The products are charged on the basis of the prices offered at the time of submission of the binding order confirmation.
6. Payment terms/solvency check
Orders are generally due for payment immediately. The provider sends a partial or total invoice after the order confirmation. The invoice is payable and due before the start of the order.
The customer receives the invoice with payment slip before the start of the order. Payment must be made using the payment slip within the payment period indicated on the invoice. If payment is not made on time, the Supplier shall be entitled not to execute the order or to charge its expenses for each reminder of at least CHF 50.00 and further costs associated with the collection as well as the statutory default interest. Should the initiation of a debt collection become necessary, we will charge an additional processing fee of at least CHF 200.
The Provider is expressly authorized by the Customer to carry out credit checks at its own discretion and, if necessary, to pass on Customer data to third parties for this purpose.
7. Order process
The Provider contacts the Customer after the order is placed in order to discuss goals and the services in a joint meeting. Once the customer agrees with all the details, he will receive an order confirmation. Only after this is confirmed, our order begins. Up to this point, no costs are incurred.
The customer himself is responsible for having the appropriate software ready so that the digital product can be opened properly and in readable form and, for example, printed out. Any liability of the Provider for the provision of suitable software by the Customer is expressly excluded.
8. Granting of rights of use
The customer may acquire the rights of use to the digital products as described in the online store against payment and store them on end devices of his choice, e.g. PC, smartphone, etc..
The granting of the rights of use shall only become effective when the customer has paid the contractually owed remuneration in full.
9. Copyright in downloaded digital products
The digital products are protected by copyright. Unless otherwise stated in the DeepL description in the provider’s online store, the provider grants the customer the simple, non-exclusive, non-transferable and non-sublicensable right to use the digital products for exclusively personal use in accordance with copyright law in the manner offered in each case.
The customer is permitted to download downloads once and to store them on various local storage devices, to copy them or to burn them onto data carriers exclusively for the customer’s own personal use. Any further use beyond the rights granted is not permitted. For example, it is not permitted to change the link to a download or the download itself in any way in terms of content or editorial content or to use modified versions, to make them available to third parties or to copy them for third parties, to make them publicly accessible or to forward them, to post them on the Internet or on other networks for a fee or free of charge, to imitate them, to resell them or to use them for commercial purposes.
The Provider is entitled to change, interrupt or discontinue the download option at any time, temporarily or permanently. In addition, the Provider is authorized to delete individual downloads from the Customer’s account if there is good cause to do so. This is particularly the case in the event of disputes about any infringements of rights. The possibility of deletion is excluded for downloads that are already on the customer’s own storage location, e.g. his PC or smartphone, after the customer has downloaded them.
To protect against unauthorized use, the provider can individually mark downloads with digital watermarks so that the original purchaser can be identified and traced in the event of improper use.
10. Subscription, contract period, termination
For certain services, subscriptions with a fixed or unlimited duration can also be concluded. Before the expiration of the respective subscription, the customer and the provider shall jointly decide on the continuation or termination.
11. Warranty
The Supplier warrants that the products comply with the warranted characteristics and do not have any defects that impair their value or their suitability for the intended use.
Upon receipt of the products, the customer shall immediately check them for correctness, completeness. Errors are to be reported to the provider immediately. Defects which could not be discovered during a proper inspection and which only appear later must be reported in writing immediately after their discovery. If you do not inspect or immediately report the defect, the product shall be deemed approved and you shall no longer be entitled to make any claims against us.
The statutory warranty provisions against manufacturing defects/material or production faults apply.
The customer’s warranty claims shall be limited to rectification of defects/rectification to the exclusion of all other claims, in particular reduction of the purchase price or compensation for indirect and consequential damages. The Provider shall decide on rectification at its own discretion. If subsequent improvements fail, the customer is entitled to withdraw from the contract in the event of significant defects.
For complaint notification or service questions, please contact us at the following address with the order number, customer number, error description and other helpful information:
Harder Marketing & Communication GmbH, Heinrichstrasse 267, 8005 Zürich digital@smarkee.ch
12. Complaints
We attach great importance to customer satisfaction. You can reach us at any time using the contact information provided at the beginning of this document. We will endeavor to consider your requests and complaints as soon as possible and will contact you upon receipt of the documents or your submission or complaint. If you have any complaints or grievances, please help us by telling us the exact problem or error signs. We aim to respond to you within 2-3 business days.
13. Responsibility
In the event of a breach of its own obligations arising from these GTC and the contractual relationships based thereon, the Provider shall be liable for damages caused and proven to have been caused by it through unlawful intent or gross negligence. Liability is expressly excluded for slight and moderate negligence and for indirect and consequential damages, whether in contract, tort or otherwise. Indirect damages include, for example, loss of profit, financial loss, damage to reputation, damage caused by computer viruses or loss of data due to temporary impairments or interruptions in the availability of the Provider’s services. Furthermore, the Provider assumes no contractual or non-contractual liability for damages caused by auxiliary persons used to provide the service.
The above exclusions and limitations of liability shall not apply in the event of culpable injury to life, limb and health directly caused by the Provider or in the event of mandatory statutory provisions, including the provisions of the Product Liability Act.
Subject to the foregoing, the total liability under these GTC, regardless of the reason, and to the extent permitted by law, shall be limited to the price of the product that the customer ordered from us.
Event outside our sphere of influence
In the event of the occurrence of an event beyond our control and influence (so-called force majeure), we shall not be liable or responsible for the non-performance or delayed performance of any obligations under these GTC and the contractual relationship based thereon. An event outside our sphere of influence exists, for example, in the following cases:
In the event of strikes, lockouts or other industrial actions by third parties, invasions, terrorist attacks, war, fire, explosions, storms, floods, earthquakes, epidemics, pandemics, other natural disasters, or the failure of public or private communications networks or the inability to use rail, shipping, air, motor lines or other means of public or private transportation.
If an event beyond our control occurs that affects the performance of our obligations under the contract, we will notify you at the earliest possible opportunity.
14. Safety precautions
The Provider undertakes to ensure security in systems, programs, etc., which belong to it and over which it has influence, in accordance with the current technical status and to comply with the rules of data protection.
The customer must ensure the security of the systems, programs and data that are within their sphere of influence. The customer should keep passwords and user names secret from third parties in his own interest.
The Provider shall not be liable for improper actions or disregard of risks by the Customer or third parties, excessive use, unsuitable operating resources of the Customer or third parties, extreme environmental influences, interventions by the Customer or disruptions by third parties (viruses, worms, etc.) that occur despite the necessary current security precautions.
15. Data privacy
The Provider collects and processes personal data only within the framework of the statutory provisions, in particular in compliance with the applicable data protection laws. For more information on the processing of your personal data, your rights and related issues, please refer to our privacy policy at https://smarkee.ch/terms-and-conditions/, which forms an integral part of these GTC.
16. Copyright
The information and content published on the website are protected by copyright and are the property of the provider or the respective rights holder. The reproduction, editing, distribution or any other form of exploitation are not permitted and require the prior written consent of the respective rights holder. The Provider and the relevant rights holder expressly reserve all rights in this respect.
17. Salvatory clause
If any provision of these GTC is or becomes illegal, invalid or unenforceable for any reason, this shall not affect the validity of the remaining provisions. Unless otherwise agreed, the invalid provision shall be deemed to be replaced by a valid provision which takes into account as far as possible the economic purpose of the provision and the intention of the parties at the time of conclusion of the contract. The same applies to any gaps in these GTC.
18. Applicable law and place of jurisdiction
These GTC, the contractual relations based thereon and any disputes shall be governed exclusively by Swiss substantive law, excluding the conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction is Zurich, domicile of the provider.
These provisions apply only to the extent that there are no mandatory provisions of the law of the state in which the consumer has his habitual residence, which take precedence over these GTC.
Harder Marketing & Communication GmbH
Heinrichstrasse 267
8005 Zürich
Zürich, 25. Juli 2022
