Last modified: 11.06.2014
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Duration and termination of the Agreement
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Further contractual provisions
Reading general terms and conditions is tedious. In this column we therefore summarize the content of our terms and conditions.
The short summaries contained in this column are not legally binding; only the wording of the full General Terms and Conditions is authoritative.
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Table of contents
These General Terms and Conditions ("GTC") constitute an integrated part of all contractual agreements ("the Agreement") between inovit GmbH ("Provider") and the client ("Client") and regulate in specific terms their general rights and obligations in relation to the provision of services agreed on.
Written arrangements to the contrary take precedence over the provisions of these GTC.
1. Subject Matter of the Agreement
2.1 General duty of care
The Provider undertakes in every case to carry out the tasks assigned to it professionally, loyally and with due care, subject to compliance with any instructions given by the Client, the Client’s internal regulations, and standards and practices customary in the industry.
The provider commits only to the written assurances and the agreed-upon deliverables concerning the assigned tasks. However, the provider is not obligated to achieve any specific goal or any particular technical or other effect or success. The economic risk for all services provided by the provider lies solely with the client.
2.2 Employees used
The Provider undertakes only to use carefully selected employees who have the required specialist knowledge and qualifications. In addition, it shall endeavour to ensure continuity in the employees used as far as possible.
The Provider is responsible for meeting all claims of its employees arising from the employment relationship. It shall ensure the required insurance cover and pay their social insurance contributions. It shall also ensure that the employees have the required work permits.
The Provider is aware of any criminal record that its employees may have. The Client may require in writing that the Provider must only use employees who have no criminal record. In addition, it may require that the Provider present an extract from the register of criminal records in respect of all employees. The Client reserves the right to impose other requirements.
2.3 Sub-contractors and use of third parties
The Provider may make use of sub-contractors and third parties to carry out the contractual duties subject to notifying the Client thereof well in advance. The Client may at any time request in writing that such a sub-contractors or third party be replaced if there is justified cause for doing so.
The Provider is obliged to have sub-contractors or third parties used (or their employees) contractually bound in writing to comply with obligations, in particular duties of care and of confidentiality, and to demand the transfer of any intellectual property rights that are created in carrying out the contractual duties.
If the Provider expressly undertakes to act on behalf of the Client as a general contractor, it shall be liable for the sub-contractors and third parties it employs in the same manner as it is liable for itself. In all other cases, it shall be liable only for their selection, briefing and supervision. If however the Client requests a specific sub-contractor or third party, the Client bears the related risk in every case.
2.4 Place and time of provision of services
The respective head offices of the parties are deemed to be the place of contractual performance, unless otherwise agreed in writing. The working hours for the provision of services shall be determined by the Client after consulting the Provider. Unless otherwise agreed in writing, the working hours are Monday to Friday, 08:00 to 17:00, other than on official public holidays at the place of performance of the service concerned.
Where the services are being provided or work done on the Client’s premises, the Provider’s employees shall abide by the Client’s internal rules and regulations. Devices, data carriers or commercial documents may only be removed from the Client’s premises after consulting the Client’s manager responsible and with his or her express consent.
2.5 Duty to provide information and documentation
The Provider shall inform the Client of all operations and modifications to be carried out on its computer systems in the course of providing services. It shall agree the date and time frame with the Client and inform it in an appropriate manner about:
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the form of services to be provided,
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the date and estimated duration of the provision of services,
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possible risks and consequences to the running of the software system, and
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any fallback scenarios.
The Client shall examine the details and confirm in an appropriate manner whether it agrees to these operations or modifications on its computer systems. Unless the Client’s confirmation has been given, the services shall continue in accordance with the existing contractual agreements. The Client’s confirmation does not constitute a duty to cooperate on the Client’s part on which the further provision of services by the Provider depends.
The Provider shall carefully document the services provided and work results achieved and provide the Client with a report every month and on request on the status of the work. It shall notify the Client immediately in writing if it learns of any circumstances that jeopardise the completion of the works in a proper manner or on schedule or that will lead to any agreed cost limit being exceeded.
2.6 Software products used by the Provider
Unless otherwise agreed in writing, the Provider makes its own decision on the software products it uses to carry out the works assigned provided such products are not or are only briefly installed or used on the Client’s computer systems.
If the Provider uses software products that are not already installed on the Client’s computer systems or that are made available by the Client in any other way, the Provider shall ensure that it has licence rights required to use such software products.
The provider executes tasks professionally and diligently according to customer instructions and industry standards, guaranteeing only the characteristics agreed upon in writing. The economic risk is borne by the customer. Qualified employees with necessary insurance and legal permissions are deployed. Subcontractors may be used after informing the customer, with contractual duties transferred in writing.
Standard working hours are Monday to Friday, 08:00 to 17:00, and on-site employees adhere to the customer's rules. The provider informs the customer about planned interventions, documents services carefully, and provides monthly reports. The provider decides on the software used and ensures the necessary licenses are secured.
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2. The Provider’s services
3.1 Provision of resources and employees
The Client shall provide the Provider in good time with all the logical and physical accesses to its computer systems that are required for the provision of services.
The Client shall designate a suitably qualified employee (the "technical contact person") with whom all the technical details may be discussed, including any interruption in operations or changes to the agreed content of services.
The Client shall designate a suitably qualified employee (the "management contact person") to be responsible for supervising the contractual relationship and with whom management matters may be discussed.
The Provider and the Client shall draw up a list of contact persons. The Client shall notify the Provider immediately of any changes in staff and designate a new contact person. The Provider shall then provide the Client with an updated list of contacts.
The Client shall provide the Provider for services carried out at the Client’s premises or those of third parties at least the same work areas, hard and software products, facilities and services as its own employees are given to carry out similar work.
3.2 Software products for the Client’s computer systems
Unless otherwise agreed in writing, the Client shall for its own account and at its own risk purchase the software products permanently required by the Provider for the provision of services on the Client’s computer systems, together with the required licences and licence renewals.
Unless otherwise agreed in writing, the Provider shall assume in good faith that in order to provide the agreed service, it is entitled to use, in accordance with the relevant provisions, the software products already installed on the Client’s computer systems and other software products provided by the Client.
3.3 Lawful use of infrastructure
The Client shall comply with the relevant statutory provisions when using the Provider’s services. The processing of illegal information (such as representations of acts of violence, pornography, discrimination, incitements to violence or to commit offences, gambling, violation of copyrights, trademark rights and other intellectual property rights, breaches of privacy, etc.) via the Provider’s infrastructure or infrastructures for which the Provider is responsible, as well as their abuse (e.g. for the harassment of third parties, violations against the unfair com- petition law, etc.) are prohibited. The Client shall at the first request reimburse the Provider for any costs and expenditures in connection with corresponding claims.
3.4 Security responsibilities
3.5 Data storage during the provision of services
The Client is responsible for the operation and the security of all elements of its computer systems for which the Provider has not expressly accepted responsibility in writing. The Client shall implement suitable security measures in organisational and technical terms, in particular in connection with the allocation of access passwords, data transmission, malware and other security-relevant aspects. In addition, the Client shall have appropriate data security policies and shall also execute the same regularly.
3.6 Duty to provide information and documentation
In order to prevent any data losses, the Client shall make a backup of its entire data and computer systems immediately before the Provider starts to provide its services and thereafter at least every day. Unless advised to the contrary in writing, the Provider may assume that any data or information lost while its services are being provided may be recovered from the Client’s backup.
The Client shall provide the Provider with all the information required for the provision of services, accurately, in full and in good time. The Client shall in particular also notify the Provider immediately of any unlawful or non-contractual uses, defects or faults in relation to the services provided by the Provider or the computer systems that it is maintaining.
The Client shall in particular also document any exceptional circumstances or error messages in its computer systems and make this information available to the Provider in an appropriate manner, insofar as this is required or helpful for the provision of services by the Provider.
The customer provides timely access to all necessary resources and designates technical and business contacts.
They ensure the required software and licenses are available and use the provider's services in compliance with legal standards.
The customer is responsible for the security of their IT systems, implementing appropriate security measures, and performing regular data backups.
They supply the provider with all necessary information accurately and promptly and document all relevant system events.
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3. The Client’s responsibilities and obligations
4.1 Notice of readiness for acceptance
On completion of the contractually agreed service, the Provider shall conduct an internal quality test and document the same in an appropriate manner. Thereafter it shall give notice to the Client that the contractually agreed service is ready for acceptance. In the case of supplies of hardware, their postal delivery to the Client replaces the notice of readiness for acceptance.
For separable parts of services that may be used independently in economic terms, part-acceptances may be agreed, whereby the entire service is regarded as accepted with the last part-acceptance ("final acceptance"). Part-acceptances that have already been given remain unaffected by the outcome of the final acceptance.
4.2 Period for testing and filing complaints
The Client shall have a period of 20 days from receiving notice of readiness for acceptance or from postal delivery within which to test the services or partial services provided for defects and then accept them or to file a complaint. A complaint must be filed in writing in respect of noticeable defects within this period, otherwise the defect is deemed to be accepted. A complaint must be filed in writing in respect of latent defects within 20 days of their discovery.
4.3 Procedure for acceptance
The Client is responsible for conducting the acceptance procedure. The Client shall draw up a suitable acceptance plan in consultation with the Provider, which includes any acceptance tests that must be carried out, the parties’ employees who are responsible, the date for acceptance and the content of the acceptance report. Any defects discovered during the acceptance procedure must be classified according to the following categories:
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Class 1 (Fatal defects)
Critical faults that lead to the absence of essential performance characteristics. At least one essential system component is not available.
Consequences: The system does not work; essential functions are absent; false processing of essential inputs; data are corrupted or lost. -
Class 2 (Serious defects)
Faults that lead to the absence of performance characteristics. At least one system component is not available.
Consequences: The system is defective and operation is disrupted; functions are absent or do not meet specifications. -
Class 3 (Minor defects)
Variances from specification that do not impair the performance characteristics (e.g. inconveniences or variances from design parameters).
Consequences: The system runs without operations being disrupted; all functions are available according to specification. -
Class 4 (Cosmetics defects)
Any potential for optimisation that is noted, modification wishes, minor criticisms of work results, errors in documentation, etc.
Consequences: The system runs without operations being disrupted; there are no variances from specification.
4.4 Acceptance report
The acceptance procedure must be documented in an appropriate manner. If defects are discovered, the following points must be included in a written acceptance report:
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results of the acceptance tests (pass; partial pass; fail);
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an open issues list with the defects that have been discovered (classified according to Clause 4.3) as well as the do- main specifically affected by the defect;
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description of the test that led to the defect being discovered;
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any differences of opinion between the parties;
If the Provider takes part in the acceptance procedure at the request of the Client, it shall draw up the acceptance report, which shall be signed by both parties immediately following acceptance.
4.5 Requirements for acceptance
The Provider’s services or partial services are deemed to be accepted if the following requirements are met cumulatively:
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no defects in defect classes 1 or 2 (according to the definition in Clause 4.3);
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acceptance tests passed according to the acceptance plan (e.g. unit test, component test, system test, system integration test, user acceptance test, performance test, etc.);
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the warranted characteristics and the agreed deliverables are present;
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the documentation is available and to the extent and in the quality agreed.
Defects discovered during the acceptance procedure must be entered on the open issues list in the acceptance report. The Provider is obliged to rectify recognised defects within the defined period free of charge. Defects are deemed to be rectified if they no longer occur as "reproducible errors" under identical circumstances or no longer occur as "non-reproducible errors" in three processing runs. The Client shall verify the rectification of defects independently.
4.6 Action in the event of a failed acceptance procedure
If the acceptance test fails, the Client shall give the Provider written notice that it has an appropriate additional period of at least 20 calendar days to rectify the services concerned free of charge. When the Provider again declares that it is ready for acceptance, a second acceptance procedure shall take place. If this acceptance test fails as well, the Provider shall allow a final period of 30 days in order to carry out further corrections free of charge.
If the acceptance test fails a third time, the Client may either
(1) continue to demand performance and allow a further appropriate period, (2) demand a reduction in the price based on the difference in value of the service concerned or (3) if the result achieved is unusable, withdraw from the individual agreement concerned and demand the refund of payments already made, subject to the exclusion of any further claims.
After an internal quality check, the provider informs the customer about the readiness of the service to be accepted.
The customer has 20 days to check the service and report any defects.
Acceptance takes place according to an agreed concept, whereby defects are divided into classes and documented.
If acceptance fails, the provider will be given grace periods to remedy the defect; if acceptance fails three times, the customer can demand a price reduction or withdraw from the contract.
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4. Acceptance procedure for the Provider’s services
5.1 Prices and payment conditions
The remuneration for the Provider’s contractually agreed services shall be individually defined in the Agreement or its annexes. All costs are shown in Swiss francs excluding VAT, which is itemised separately on each invoice. All other taxes and duties that are charged on the Agreement being concluded or fulfilled shall be borne by the Client. In addition, the following payment terms apply:
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flat-rate charges are billed on the agreed dates;
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regular charges are billed every month;
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work on a time and material basis is billed on a monthly basis. The bills shall indicate the individual employees, the work carried out and the time taken (to the nearest 15 minutes).
5.2 Expenses and travelling time
Unless otherwise agreed in writing, proven expenses and incidental costs (travel, hotel accommodation, data carriers, copies, postage, etc.) shall be billed to the Client in addition to the agreed remuneration. Furthermore, unless otherwise agreed, the time spent travelling to the Client’s premises in order to provide services there counts as working time and is also charged as work on a time and material basis.
5.3 Appointments and postponement of appointments
The parties shall agree any deadlines and appointments in the individual agreement concerned or if need be by mutual agreement in the course of contractual performance. Unless expressly agreed otherwise, non-compliance with any agreed deadlines or appointments establishes default without further formalities.
Agreed deadlines and appointments are therefore mandatory and must be complied with. If the Client must postpone a deadline or a appointment for reasons not attributable to the Provider, the Provider shall attempt to use the resources it has made available for another purpose. If this is not possible, the Provider may bill the Client for the resources concerned in addition to the agreed remuneration.
5.4 Changes to prices
The parties shall agree any deadlines and appointments in the individual agreement concerned or if need be by mutual agreement in the course of contractual performance. Unless expressly agreed otherwise, non-compliance with any agreed deadlines or appointments establishes default without further formalities.
Agreed deadlines and appointments are therefore mandatory and must be complied with. If the Client must postpone a deadline or a appointment for reasons not attributable to the Provider, the Provider shall attempt to use the resources it has made available for another purpose. If this is not possible, the Provider may bill the Client for the resources concerned in addition to the agreed remuneration.
5.5 Due date and consequences of default
The Provider’s invoices are due for payment net within 20 days of the invoice date. If payment is not made within this period, the Client shall be held to be in default without further formalities and the Provider may stop providing its services until the invoice is paid. The Provider shall give written notice of any imminent stoppage of service, allowing an additional period of 5 working days for payment.
The remuneration for the provider's services is set out in the contract, in Swiss francs excluding VAT, which is shown separately, and all other taxes are borne by the customer.
Flat-rate and periodic fees as well as time-based work are invoiced monthly; expenses and travel time are charged additionally.
Agreed dates are binding and price changes can be made with six months' notice, whereby the customer has the right to terminate the contract in the event of price increases.
Invoices are payable within 20 days, after which the customer is in default and the provider can stop providing its services.
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5. Costs and conditions
6.1 Warranty against legal defects
The Provider warrants to the Client that the work results that it provides or their intended use does not infringe the rights of any third parties.
The Client shall notify the Provider immediately of any related claims and the Provider shall accept responsibility for conducting any court proceedings or for settling the same out-of-court. The Provider shall update the Client on the progress of negotiations and seek its advice on important decisions. In such circumstances, the Provider shall relieve the Client of any obligation to pay costs or damages.
If the provision of the contractual service is held in a court judgment or in the Provider’s estimation to infringe third party intellectual property rights, the Provider has the right to decide whether:
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it makes changes to the contractual service at its own expense in order to remedy the infringement of intellectual property rights;
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it acquires the required rights of use from the holder of the intellectual property rights at its own expense; or
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it provides compensation for the infringement of intellectual property rights by refunding the remuneration paid (under deduction of appropriate depreciation during the period of use).
6.2 Warranty against material defects
The Provider warrants that the work results will be achieved in good time with the specifications agreed with the Client. The Provider also warrants in particular the availability of its services in accordance with service levels that may be agreed in relation to the specific services.
The Provider provides no warranty that any service it provides or work result it achieves can be used without interruption and free of defect in any desired combination or with any available data, infrastructure or software, nor that the correction of a software error will prevent other errors from arising. The Provider shall however provide all the services appropriate in the circumstances in order to maintain or restore operational efficiency.
The Provider further provides no warranty for errors or defects in software products supplied by third-party manufacturers (such as Microsoft) or which the Provider uses as work equipment (e.g. third-party tools, add-ons and extensions to existing systems etc.). The Provider shall however endeavour while fulfilling its contractual duties to supply the Client with the latest patches, upgrades and updates.
6.3Time limit for warranty claims
The right to file claims based on the warranties against legal and material defects expires at the latest 24 months after notice of readiness for acceptance is given in accordance with Clause 4.1 of these GTC.
The provider guarantees that its work results do not infringe the rights of third parties and undertakes to indemnify the customer against all resulting costs and liability for damages. In the event of an infringement of property rights, the provider may make changes, acquire rights of use or partially refund the remuneration.
The provider guarantees timely delivery and compliance with the agreed specifications, but not uninterrupted and error-free use in all combinations. Warranty claims expire 24 months after notification of readiness for acceptance.
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6. Warranty
7.1 Direct loss or damage
Provided it is proven to be at fault, the Provider shall be liable for any direct loss or damage not exceeding the amount that the Client paid for the Provider’s services in the 12 months before the damaging event, or CHF 150,000.00, whichever is the lower.
The Provider shall not be liable if it was prevented from carrying out its contractual duties on time or in the proper manner because of circumstances for which it was not responsible. In such an event, the agreed deadlines shall be extended accordingly.
7.2 Indirect loss or damage
To the extent permitted by law, the Provider excludes all liability for any indirect loss or damage and consequential loss or damage caused by defects (such as loss of profits, operating losses, savings not achieved, loss of data, data recovery costs, legal costs, etc.).
7.3 Product Liability Act
The Provider shall only be held liable for loss or damage that is governed by the Product Liability Act in accordance with the mandatory statutory provisions.
The provider is liable for direct damages up to a maximum of CHF 150,000.00 if it can be proven that he is at fault, but not for delays or non-fulfillments for which he is not responsible.
The provider assumes no liability for indirect damages and consequential damages, except within the framework of the mandatory provisions of the Product Liability Act.
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7. Liability
8.1 Allocation of intellectual property rights
The Provider is entitled to all rights to any intellectual property (copyrights, designs, inventions, know-how, etc.) created by the Provider, its employees, its sub-contractors or third parties used in order to carry out the contractual duties, irrespective of their legal protectability. The Provider may in particular use the intellectual property rights created in the course of carrying out the contractual duties in other projects or market them as an element in software products.
8.2 Granting of licences
Intellectual property rights and documents created in the course of the fulfilment of the contractual duties by the Provider, its employees, its sub-contractors or third parties used (e.g. concepts, solution documentation, process definitions, process control systems, parameterisations, adaptations and extensions to software, source code and scripts) may be used, adapted or otherwise applied in accordance with the relevant provisions by the Client and its affiliated companies anywhere in the world and at any time, including subsequent to the termination of the contractual relationship with no additional cost due to the Provider, provided no licence provisions of manufacturers of software products that may apply are infringed thereby.
The Client however acknowledges that in the absence of an express written agreement to the contrary in relation to the Provider’s agreed services, there is no right to exclusivity. The Provider may without further formalities provide identical or similar services to third parties as well.
The provider retains all intellectual property rights to work results and may use them in other projects or market them commercially.
The customer may use the intellectual property and documentation created in the context of the contract fulfillment worldwide and free of charge, as long as no license terms are violated, but has no claim to exclusivity.
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8. Intellectual property rights relating to work results
In the event of any sale of hardware products between the parties, the provisions of this Clause 10 take precedence over the other provisions of these GTC.
9.1 Ordering process
Before any sale of hardware products, the Provider shall send the Client a separate offer showing the number, price, delivery address (in Switzerland), down payment, applicable warranty terms and the expected delivery date.
In the absence of any written agreement to the contrary, customs, shipping and handling costs shall in each case be billed separately according to the expenditure actually incurred. In the absence of any written agreement to the contrary, the installation of the hardware products is not included in the sale price.
The Client shall check the offer, sign it and send it back to the Provider within 10 days. By its signature, the Client undertakes irrevocably to accept and pay for the hardware products ordered.
The Provider will then place the order and immediately send the Client an order confirmation. The Provider is only obliged to deliver the hardware products ordered after sending the order confirmation.
9.2 Delivery dates
The Provider shall endeavour to meet the Client’s delivery requirements. Delivery depends on the Provider having the products in stock, with the result that the delivery times and dates specified are non-binding and do not constitute a fixed due date.
In the event of delays of more than 60 days beyond the nonbinding delivery date specified in the order confirmation, the Client may withdraw from the purchase contract in respect of the hardware product concerned, subject to the exclusion of any other claims against the Provider.
9.3 Delivery and passing of risk
The Provider shall deliver the hardware products to the address on the order confirmation or, in the absence of an address, to the address of the Client’s company head office. The risks of damage or loss pass to the Client at the time of delivery or on the first attempt at delivery to the destination address.
9.4 Acceptance and period allowed for complaints
If a hardware product is not installed by the Provider, it is deemed to have been accepted by the Client if no written complaint is made in respect of noticeable defects within 10 days of delivery. If a hardware product is installed by the Provider, it is deemed to have been accepted by the Client if no written complaint is made in respect of noticeable defects within 10 days of installation by the Provider. Complaints relating to latent defects must be made in writing within 20 days of their discovery, or otherwise are deemed to be accepted.
9.5 Guarantee and exclusion of warranty
The Provider assigns to the Client all rights that are derived from the manufacturer’s guarantee. On being sent the order form, the Client shall be notified of the duration and terms of the manufacturer’s guarantee either in printed form or by means of a link to the manufacturer’s website.
The Provider otherwise excludes all guarantee or warranty claims to the extent permitted by law and is therefore relieved to this extent of any related liability towards the Client.
When selling hardware products, the provisions of this section take precedence over the other General Terms and Conditions.
The supplier provides an offer with details such as quantity, price, delivery address, deposit, warranty conditions and delivery date, which the customer must return signed within 10 days.
Delivery is subject to availability and risks pass to the customer upon delivery or the first delivery attempt.
Defects must be reported within 10 days of delivery or installation, and the manufacturer's warranty conditions apply, while the provider excludes any other warranty claims.
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9. Sale of hardware products
10.1 Modifications to the project
The parties may at any time submit a written proposal that the agreed services be modified. The Provider shall inform the Client at the latest 10 working days after receipt of the request for modification in writing of:
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the consequences for the originally agreed services;
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the consequences for the originally agreed schedule; and
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the consequences in relation to risks and costs.
The Provider has no responsibility for decision-making process on the Client’s side. The Provider however shall be available to give advice. In the absence of a written agreement to the contrary, the work shall continue unmodified until the Client’s decision is made.
The Client shall advise the Provider of its decision in writing within ten working days of receipt of above mentioned notification. In the case of major or fundamental modifications, the Provider shall draw up an annex to the relevant individual agreement with updated specifications, which must be signed by both parties.
Following signature of the annex or confirmation by the Client of the modification to the project, the modification shall constitute an integral element of the relevant individual agreement, whereby any provisions of the individual agreement that are contradictory to the modification shall be deemed null and void.
10.2 Project extensions or additional project phases
The Client may at any time propose the extension of an existing project or the conduct of additional project phases following the already agreed project phases. In such cases, the Provider shall in each case set out the deliverables, costs and deadlines that are associated with these project extensions or additional project phases in an annex to the relevant individual agreement.
On signature of the relevant annex to the agreement by both parties, it shall constitute an integral element of the existing individual agreement. The provisions of the existing individual agreement also apply to the additional annex to the agreement in question, unless they are contradictory thereto.
The parties may propose changes to the agreed services in writing, with the provider disclosing the impact on services, schedule and costs and the customer responding within ten working days.
For project extensions or additional phases, an appendix to the contract will be created, which will become part of the contract after both parties have signed it.
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10. Modifications and extensions to the project
11.1 Duration of the Agreement
The Agreement together with any subsequent amendments and additions comes into effect on its signature by both parties and replaces all prior contracts and agreements of a similar nature. The Agreement is entered into for an unlimited period.
11.2 Ordinary and extraordinary termination
The Agreement may ordinarily be terminated by either party at the end of any month without stating any reasons but subject to 6 months' written notice.
In the case of a serious breach of contract or any other good cause, either party may at any time terminate the Agreement extraordinarily. There is good cause in particular if:
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the other party by its own fault infringes a fundamental provision of these GTC or of another contractual provision and this infringement is not remedied within two calendar weeks despite a written reminder being given.
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the other party faces a serious risk to or suffers a serious deterioration in its financial circumstances or an application for bankruptcy is filed against it.
11.3 Consequences of termination
In the event of the termination of the Agreement the Provider shall support all the required work towards an orderly end to services or handover to the Client or to third parties. Within 30 days of receiving notice of ordinary termination and immediately on receiving notice of extraordinary termination, the Provider shall submit to the Client for approval a detailed plan in relation to the end to or handover of services. The work done by the Provider in this connection shall be remunerated on a time and material basis.
In the event of the termination of the Agreement each party shall return to the other party, immediately or in accordance with termination or handover plan, all the documents, information, data, devices, materials, keys, etc. that they have received from the other party in the form in which they were received. In the event that return is not possible, the information, software etc. shall be permanently deleted, subject to the statutory duties of retention and documentation, and the retention of information stored in backups. The related costs shall be borne by the party required to return the items and information in question. The parties shall confirm on request in writing that all the items and information subject to the return or deletion obligation have been returned or deleted.
The contractual provisions include regulations on the poaching of employees, the treatment of force majeure, the need for written agreements for contract amendments and ancillary agreements, and the exclusion of corporate relationships.
In addition, they regulate the offsetting and transfer of rights, the handling of partially invalid provisions, the non-competition clause for the provider vis-à-vis customers and the applicable law as well as the place of jurisdiction.
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11. Duration and termination of the Agreement
12.1 Non-solicitation guarantee
For the duration of the Agreement and for 12 months following termination of the Agreement each party may only employ employees of the other party by mutual written consent. The foregoing also applies to former employees if the termination of employment with the other party took place less than 12 months previously.
12.2 Force majeure
The parties shall not be held liable for the consequences of force majeure, such as strikes, lock-outs, civil unrest or floods or official measures, provided such events were unforeseeable and/or unavoidable in the specific individual case. If, owing to the consequences of force majeure, the provision of one or more contractual services is significantly impeded, the Provider may postpone the fulfilment of its obligations by an appropriate recovery period.
12.3 Amendments to the Agreement
Subsidiary agreements and amendments must be done in writing in order to be valid and must be signed by the parties. This requirement of form may only be dispensed with by written agreement.
The client hereby grants the provider permission to use their name and logo as a reference on the internet and in electronic or printed documents and materials. The client may revoke or limit this right at any time.
12.4 Reference
The parties do not wish under any circumstances to enter into a corporate or similar relationship nor to form a simple partnership in terms of Article 530 ff. of the Swiss Code of Obligations.
12.5 Exclusion of a corporate relationship
The setting off of claims is only permitted with the written consent of the other party. The Agreement as well as individual rights and obligations arising from this Agreement may only be assigned to third parties with the written consent of the other party, whereby the consent may not be refused in bad faith.
12.6 Set-off and transfer of rights and obligations
Should one or more contractual provisions prove null and void or ineffective, the validity of other contractual provisions or the Agreement shall not be affected thereby. In such an event, the parties shall adapt the Agreement so that the purpose of the part that is null and void or ineffective is as far as possible achieved.
12.7 Partial nullity
If the client obtains services from the provider for their own end customers, the provider agrees not to provide any services directly to these end customers without the prior written consent of the client.
This includes all tasks explicitly specified in the respective order and intended exclusively to be performed for the customer within the scope of that specific order. It thus encompasses all activities clearly and directly related to the contractually defined requirements and objectives between the parties.
This obligation of the provider is valid for the duration of the respective order and for 6 months after its termination, but it does not apply to services outside the scope of the order.
12.8 Prohibition of competition in relation to end customers
The Agreement is governed by Swiss substantive law, excluding the international rules on the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (the Vienna Convention on Sale of Goods).
The exclusive place of jurisdiction for all legal disputes that arise directly or indirectly from the Agreement is Dielsdorf. The Provider may however also raise proceedings for interim measures in other courts.
12.9 Governing law and jurisdiction
The contractual provisions include regulations on the poaching of employees, the treatment of force majeure, the need for written agreements for contract amendments and ancillary agreements, and the exclusion of corporate relationships.
In addition, they regulate the offsetting and transfer of rights, the handling of partially invalid provisions, the non-competition clause for the provider vis-à-vis customers and the applicable law as well as the place of jurisdiction.
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