# GTC

1. Scope of Application 

1.1 coupolino AG (“coupolino”) offers companies (“customers”) tools and services in the field of mobile marketing and web applications (“products”) for the use towards interested private persons (“subscribers”).  

1.2 coupolino acts exclusively as a service provider for the Customer. In case of conclusion of a contract (purchase contract or similar) between the customer and a subscriber, the contract is concluded directly between the customer and the subscriber. coupolino is not a party to such a contract. 

1.3 These general terms and conditions (“GTC”) regulate the relationship between the customer and coupolino and are valid for all products of coupolino. 

1.4 Deviating GTC of the customer are only valid if and as far as they are explicitly accepted in writing by coupolino. If there is no such written acknowledgement, only the present GTC shall apply. 

2. Offer and conclusion of contract

2.1 All tariffs, price lists, advertising materials and information submitted and published by coupolino are non-binding and can be changed unilaterally by coupolino at any time. 

2.2 The customers inform coupolino orally, in writing, via the online platform or by e-mail which products they would like to order from coupolino. 

2.3 The contract is concluded in one of the following ways: 

1. by written confirmation of the customer’s order by coupolino; or
2. by countersignature of the order form by the customer; or
3. by independent “onboarding” via the online platform of coupolino by the customer.

3. Content of the contract

3.1 The content of the contract is determined by the products ordered by the customer: 

1. Online platform: The contract gives the customer a paid, time-limited, non-exclusive and non-transferable right to use the online platform provided by coupolino according to these GTC in the respective current version for mobile marketing. 
2. Services concerning mobile marketing: If the customer does not want to use the online platform for mobile marketing on his own, coupolino takes over on behalf of the customer according to a separate offer, among other things, the technical handling of customer acquisition and customer loyalty programs, for example paperless voucher campaigns or bonus programs, and mediates possible purchases. For this purpose coupolino uses its own developed online platform.
3. Other offers: Further/special services, advanced statistics, offers, special offers, marketing campaigns, game designs or similar, which are provided by coupolino, can be ordered by the customer at the appropriate time or according to availability. The corresponding service package and associated costs will be shown and clearly defined on a separate offer.

3.2 The contract does not establish any claim that a certain advertising effect or a certain range of the advertising will be achieved by mobile marketing. In particular, the customer is aware of the fact that subscribers have the possibility to hide offers from customers.  

3.3 coupolino is continuously developing the tools, especially the web application, which may change the scope of services and functions. coupolino shall take into account the Customer’s needs as far as possible and reasonable, but cannot guarantee that every service and function will be maintained during the entire contract period. 

4. Contract duration, contract renewal and termination

4.1 The contractual relationship is concluded for a minimum term of 12 months, unless a deviating minimum contract term has been agreed between coupolino and the customer. 

4.2 The contract period starts with the activation of the customer account by coupolino. 

4.3 The contract is automatically extended (subject to clause 4.4) for another 12 months, if it has not been terminated in writing by one party with a notice period of one month to the end of the respective contract period. 

4.4 The term of the contract is limited to 5 (five) years.  

Example notice period:  

Contract term: March 12, 2021 to March 11, 2022. 

Last date of termination: February 11, 2022 

4.5 Any price changes of the prices for the next contract term will be communicated by coupolino to the customer in due time before the beginning of the one month notice period. Price changes will only become effective for the next contract period. 

5. Terms of payment or payment processing

5.1 The services rendered or to be rendered by coupolino for the contract period are to be paid in advance or within the payment period by the customer.  

5.2 The invoices of coupolino are to be paid within 30 days without deductions.  

5.3 If a customer is in default of payment, coupolino will generally send him a reminder. If the customer does not pay within the following 10 days, coupolino reserves the right to block the customer account and to stop the services until payment is received. If the payment is delayed for another 10 days, coupolino may terminate the contract without notice and initiate further legal steps. 

6. Warranty

6.1 coupolino strives for a high availability of its products. Customers acknowledge that errors may occur despite careful software development and maintenance. However, coupolino cannot guarantee an uninterrupted and trouble-free functioning of its infrastructure and its products. 

6.2 coupolino takes commercially reasonable and proportionate measures for the security of the data and products to keep the systems on the current technical level and to protect them. However, coupolino cannot guarantee that the infrastructure is protected against unauthorized access and manipulation.  

6.3 coupolino carries out maintenance work, expansion of services, introduction of new hardware and software, as far as possible and reasonable, without interruption or not during normal business hours. Major, foreseeable interruptions of service will be communicated to the customer in advance. 

7. Liability of coupolino

7.1 The contractual and non-contractual liability of coupolino is limited to direct and immediate damages caused by coupolino intentionally, by gross negligence or by fraudulent misrepresentation. Liability for damages caused by slight and medium negligence is excluded.  

7.2 Liability for indirect and consequential damages, loss of profit, consequential damages and claims of third parties shall be excluded to the extent permitted by law.  

7.3 The liability for auxiliary persons, which coupolino uses for the fulfillment of its contractual obligations, is excluded.  

7.4 To the extent permitted by law, coupolino shall not be liable in particular  

1. for deficiencies and damages for which it is not responsible, especially not for security deficiencies and operational failures of third party companies with which it cooperates or on which it is dependent; 
2. for force majeure, improper actions and disregard of risks on the part of the customer or third parties, excessive use, unsuitable operating resources of the customer or third parties, extreme environmental influences, interventions by the customer or disturbances by third parties (viruses, worms, etc.), which occur despite the necessary current safety precautions;
3. for damages resulting from the use of its products by customers or third parties in violation of the law or the contract; 
4. for damages caused by the content entered by the customer himself in the application of coupolino, e.g. wrong information in the business profile or directory entry. 

7.5 The above exclusions and limitations of liability do not apply in case of culpable injury to life, body and health directly caused by coupolino as well as in case of mandatory legal regulations, including the regulations of the Product Liability Act. 

8. Support

8.1 As far as reasonable and possible, coupolino supports the customer after opening the customer account in case of technical questions, installation and application problems. 

8.2 Support requests are primarily to be sent to coupolino via e-mail. Customers can also use the telephone hotline. coupolino may provide for further provisions in the manual (see section 10.5). 

8.3 In principle, support services are free of charge within the usual scope. However, coupolino reserves the right to charge a lump sum agreed in advance or to apply a previously agreed hourly rate for requests or in case of disproportionately large support needs. 

9. Customer account, customer data

9.1 The customer has to create a customer account for the use of the products. The customer provides coupolino with all data necessary for the contractual services (“profile data”). The customer is obliged to enter all profile data correctly and truthfully. He is responsible that the data he enters (e.g. the chosen address designations [domain, e-mail addresses]) do not violate the rights of third parties.  

9.2 The customer account will be activated by coupolino within one week after the profile data has been correctly entered by the customer. 

9.3 If the profile data for the activation of the customer account, but especially for the directory entry, are not entered in time and/or not with the correct content and/or not in the required form and quality, the customer accepts that they will not be published in time.  

9.4 The customer is responsible for entering and updating the profile data. Subsequent corrections of the profile data by the customer are possible via the login assigned to the customer (“Portal”).  

9.5 The customer is obliged to keep the information and pictures about the company as well as offers and messages (“customer content”) up to date and correct during the contract period. 

9.6 coupolino reserves the right to change profile data or customer content (“customer data”). Customers will be informed of such changes immediately. 

9.7 coupolino secures the customer data by a regular backup. The backup represents an image at a certain point in time. The customer remains responsible for the backup of his data. 

10. Beacon and QR code

10.1 coupolino uses QR-codes as well as the beacon technology, which are used at the customers location. coupolino provides the customer with a suitable beacon (if necessary several Beacons) as well as QR-Code(s) for the duration of the contractual relationship. The property (QR-Codes and Beacons) remains with coupolino. At the end of the contract, the customer has to return the beacon immediately to coupolino and to dispose of the QR-codes professionally. 

10.2 The customer is obliged to ensure the power supply of the beacon at his own expense and to keep the beacon switched on continuously (24 hours, 7 days a week) and to make it accessible to the subscribers. 

10.3 During the term of the contract, the customer is prohibited from using other beacons for the same or a comparable purpose.  

10.4 The customer shall immediately report any malfunctions of the beacon to coupolino. The customer is prohibited to make changes to the beacon or to use the beacon for other purposes than the fulfillment of this contract.  

10.5 coupolino provides the customer with a manual in electronic form for handling the technical system (and especially the beacon). The customer is obliged to comply with the rules contained in the manual. 

11. Offers and messages 

11.1 Before requesting the publication of an offer, the customer shall ensure the quality of the offer and check in particular: 

– Basic offer (“attractiveness”) 

– Spelling; 

– Assignment to category; 

– Quality of the picture material. 

11.2 The release of the offer is done by coupolino. The release usually takes place on weekdays between 09:00 – 12:00h and 13:00 – 17:30h within a reasonable period of time. The customer is obliged to enter the offer early in order to ensure a timely publication.  

11.3 coupolino reserves the right to correct, in particular, orthographic errors without the customer’s consent and to edit or delete images provided by the customer that do not meet the desired quality.  

11.4 coupolino is entitled to implement a more extensive approval process for the customer content and to reject data provided by the customers without giving reasons. 

12. Obligations of the customer

12.1 The customer is obliged to ensure that the customer data is up to date and corresponds to the truth. 

12.2 The customer is exclusively responsible for checking the legal admissibility of the customer data (including offers). 

12.3 The customer shall in particular ensure that all customer data does not violate applicable law or the rights of third parties, such as in particular personal rights, copyright, competition law, advertising law, regulations on trademarks and designs, etc. The customer shall also ensure that the customer data does not infringe the rights of third parties.  

12.4 Offers concerning tobacco and other smoking products as well as tobacco products are prohibited and may not be published. 

12.5 Offers concerning alcohol in the sense of the AlkG (in particular distilled water) are prohibited and may not be published. 

12.6 Pre-fermented beverages such as wine, fruit wine, sparkling wine or champagne and beer may only be published if the applicable legal situation permits this. The offers may not be directed to persons under 18 years of age, in particular, the offers may not be deposited with the “targeted function” (if available) to persons under 18 years of age or have a special reference to youth. The offers may only be played out to users or be visible to those who have registered and have reached the age of 18 (provided that this function is available in the app or this can be guaranteed, otherwise no such offers may be published). 

12.7 Content, offers and messages must always be written in one of the three national languages (German, French, Italian). Exceptions are foreign language offer texts, which are colloquially known and used.  

12.8 Customers undertake to use the message function (in particular push messages, if available) in reasonable proportion to subscribers. Customers are responsible for the content of the messages themselves. 

12.9 The customer undertakes to use all functions exclusively as intended, i.e. only in the respective manner and for the respective purpose. 

12.10. The customer is prohibited from misusing the application, e.g. creating the same offer several times with different target groups without objective reason, misappropriation of functions or excessive use of the message function.  

12.11. The customer indemnifies coupolino regardless of fault and upon first request completely against all damages, losses, fines, penalties and expenses (including attorney’s fees) resulting from claims of third parties in connection with the violation of contractual or legal obligations by the customer. 

13. Rights of coupolino

13.1 If the customer does not comply with the obligations according to the GTC, coupolino is entitled to immediately block the access to the customer account without prior notice, to adjust and delete customer data, to immediately block functions and/or the customer account, without the customer being entitled to reimbursement of the fee or compensation.  

13.2 The customer is liable towards coupolino for all damages which are due to the violation of his contractual or legal obligations. In case of serious violations, coupolino has the right to terminate the contract immediately without the customer being entitled to reimbursement of the fee or damages. All claims of coupolino remain unaffected. 

13.3 If customer data violate applicable law, coupolino reserves the right to inform the responsible authorities. 

14. Security / data protection

14.1 Customers shall ensure the security of the systems, programs, QR codes, beacons and data that are within its sphere of influence. Customers must keep passwords and usernames secret from third parties, if necessary change passwords and QR codes (if possible) in regular intervals and design passwords in such a way that they cannot be easily determined. 

14.2 coupolino commits itself to process personal data according to the regulations of the valid Swiss data protection law as well as the privacy policy of coupolino.  

14.3 The customer commits himself to process personal data according to the regulations of the applicable data protection laws and regulations.  

14.4 The customers make sure that they do not spread sources of danger by their own software which can disturb the services of coupolino or third parties. 

14.5 Customers commit themselves not to cause an excessive load on the networks by untargeted or improper spreading of data and in particular to refrain from spam messages. 

14.6 Customers shall refrain from spreading computer viruses. 

15. Intellectual property rights and other property rights

15.1 Apart from the right to use the intellectual property rights required to perform the contractually agreed services, the customer shall not acquire any licensing or proprietary rights. 

15.2 The customer is entitled to use the trademark “SCOUNT” to the usual extent. coupolino reserves the right to prohibit individual uses in individual cases. 

15.3 The customer acknowledges that all elements and contents on the websites and in the web applications of coupolino, which do not originate from the customer, belong exclusively and comprehensively to coupolino, unless otherwise agreed to in writing in advance.  

15.4 coupolino is namely the owner of all intellectual property rights on the online platform, such as in particular  

– the functionalities, the know-how, the texts, the animated or still images, graphics and all other elements of which it is composed 

– the databases, their structure and content  

– the design elements, whether they are graphic or technical; 

– the names, signs and trademarks, in particular “COUPOLINO”, “SCOUNT”, as well as all other signs used by coupolino. 

15.5 The customer is prohibited to use or exploit the rights in any other way than defined by coupolino. Reproductions of any kind (in whole or in part in any form – electronically or in writing) are only allowed with explicit consent and naming of coupolino. Violations can be prosecuted under civil and criminal law. 

15.6 coupolino is entitled to use the logo of the customer (“brand/customer logo”) for advertising purposes or as reference free of charge and to publish it on its platforms (websites, social media channels, or similar).  

15.7 Upon termination of the contract, all rights of the customer shall expire with immediate effect. 

16. Final provisions

16.1. coupolino can make changes to these GTC at any time. If the customer does not agree with a change, he has to declare this to coupolino within 30 days. In this case, coupolino can terminate the contract with immediate effect. The customer is not entitled to a refund of payments already made.  

16.2 Changes, additional agreements, supplements and deviations must be made in writing.  

16.3 This contract and all claims arising from or in connection with this contract shall be governed by Swiss substantive law, to the exclusion of (international) treaties.  

16.4 The exclusive place of jurisdiction for all types of proceedings – unless otherwise mandatorily determined by civil procedural law – shall be Zurich, Switzerland. The place of performance is Zurich, Switzerland.  

16.5 If certain points are not regulated or individual provisions of these GTC are invalid or the fulfillment becomes impossible, the legal validity of the remaining provisions shall remain unaffected. The invalid or incomplete provision shall be replaced by an agreement or provision that complies with the law and comes as close as possible to the will of both parties and the intended economic purpose of the provision to be replaced. The same shall apply in the event of impossibility of performance.  

16.6 The customer may not offset his contractual payment obligations against claims against coupolino. 

16.7. coupolino reserves the right to transfer single or all rights and obligations of this contract to a third party or to have them exercised by a third party. The customer is prohibited to transfer the underlying contractual relationship as well as the rights and obligations arising in this context to a third party without prior written consent of coupolino; such a transfer is void. 

16.8 If coupolino fails to assert a right to which it is entitled in whole or in part or if it does so in a delayed manner, this shall not be considered as a waiver of this right. The delayed or only partial exercise of a right does not exclude a later or full exercise of this right. 

Valid as of March 17, 2021