Terms and Conditions
1. Object of the Contract
1.1 The supplier sells the material listed in the quote/purchase agreement to the customer. The customer declares its agreement with this.
2. Delivery and Installation of the Sold Material
2.1 The delivery and installation costs are not included in the price, unless mentioned in the contract.
2.2 Training costs are not included in the sale price, unless mentioned in the contract.
2.3 Goods and material (hardware, software, accessories, etc.) must be sent by the supplier to the customer either by means of courier or registered post. The supplier does not accept any liability for loss of or damage to data carriers correctly handed over to the courier service or the postal service against a receipt. In particular, the supplier cannot be held responsible for possible damage, which can happen or has happened to the customer due to such transport.
3. Delivery Date
3.1 Delivery will be effected by the agreed delivery date, unless the supplier does not receive the goods as agreed from its sub-contractor, or instances of force majeure arise, especially war, transport difficulties, embargo, etc. In consequence, the customer undertakes to take receipt of the material on the agreed date.
3.2 The supplier must be notified in writing within 30 days of delivery of all complaints in respect of possible material deficiencies or incomplete or non-received delivery.
4.1 The purchase price includes the fees and taxes, which are valid at the time of conclusion of the contract.
4.2 In the event of a change in taxes and fees, the supplier reserves the right to modify the agreed price.
5. Conditions of Payment
5.1 In the absence of a written agreement to the contrary, the price is payable net, without a discount within 20 days of the invoice date. Without the customer’s notification, an invoice is deemed to have been accepted after the payment period has elapsed.
5.2 In the event of delayed payment, the usual local interest will be levied on the amount outstanding.
5.3 Payment is also due even if the customer has not accepted the purchased material on the intended delivery date in accordance with item 3, insofar as said material is available to the customer at the domicile of the supplier.
5.4 If the customer is in arrears, the supplier can withdraw from the contract at its discretion, and demand the return of the sold material or uphold fulfilment of the contract and have retention of the title registered as per item 6.
5.5 As long as the customer has not become the owner of the sold material, it is prohibited from renting, pawning, assigning or selling same.
5.6 If the customer so wishes, the supplier will issue it with a leasing proposal. If the customer is not accepted by the proposed leasing company, it shall procure its own financing. Extraneous financing requires the supplier’s approval in all circumstances.
6. Retention of Title
6.1 The material remains the property of the supplier until it has been paid for in full (Art. 716 OR). IF the customer gets into arrears, the supplier has the right to unilaterally have the retention of title entered in the retention of title register at the customer’s domicile and at the latter’s expense.
6.2 Until payment is made in full, the customer is obligated to immediately inform the supplier in writing of any change of installation location.
7.1 At the customer’s request, the supplier will advise the former in relation to the equipment of the spaces in which the material is to be installed.
7.2 Work, which might be necessary in accordance with installation regulations, shall be carried out at the customer’s expense.
7.3 Such work must be completed prior to the delivery date agreed in accordance with item 3, otherwise item 5.3 shall be applicable.
7.4 The customer assumes all responsibility for:
- documents originating from it, such as solution concepts, specifications and implementation instructions
- choosing the data to be processed and procurement of the machines and programs provided for use with the result of the work
- creating the technical, organisational and administrative preconditions for the introduction and use of the result of work
- selecting, employment, training and inspection of personnel
- measures for examining results and evaluations and for securing data and programs
8. Customer Complaints
8.1 All complaints relating to possible material deficiencies or incomplete or non-received delivery must be made in writing to the supplier within 30 days after the delivery.
9.1 The supplier provides the customer with a warranty for all of the hardware in accordance with the delivery date indicated in the purchase contract. The warranty covers the replacement of defective parts. Personnel and travel costs for the repair service and corrective maintenance shall be borne by the customer, especially also costs in respect of the restoration of data, unless otherwise defined in a maintenance contract.
9.2 Malfunctions and damage, which occur as a result of incorrect operation by the customer, its personnel or third parties, are not covered by the warranty.
9.3 Damage, which results from force majeure, explosions, extinguishing and rescue damage, break-ins and theft, electricity malfunctions, voltage drop, etc., are not covered by the warranty.
Legal provisions are applicable.
11.1 The supplier undertakes to maintain absolute discretion in relation to data and confidential information that become known to it during its work with the customer.
11.2 It is prohibited to make data, information and programs accessible to third parties, persons extraneous to the company or to other companies.
12.1 Inspections: The customer must immediately inspect documents presented to it during fulfilment (intermediate results, test results, etc.) and the work result, and notify the supplier in writing of any objections or deficiencies.
12.2 Programs: Clear program errors shall be rectified by the supplier in accordance with the guarantee provisions. An acceptance of the product processing shall in all circumstances be deemed as acceptance.
13.1 Diligence: The supplier undertakes to complete the work according to the best of its knowledge and with the greatest possible diligence.
13.2 Program functions: The supplier guarantees the function of the programs supplied by it in the standard version and on the devices recommended by the supplier.
13.3 Limitation: The supplier cannot guarantee that the programs created by it can be used uninterruptedly and fault-free in all combinations desired by the customer, with any desired data, EDP systems and programs, nor that the correction of a program error will exclude the occurrence of another program error. The supplier expressly declares to the customer that a computer program (software) and PCs, servers, etc. (Hardware) cannot operate uninterruptedly fault-free and malfunction-free. The customer must ensure that, in the event of a breakdown of one or more of the components supplied or sold by the supplier, it can at all times secure operation or maintains necessary emergency procedures in readiness for such an event, which prevent any damage. If damage of any kind occurs due to such breakdowns, the supplier expressly rejects liability of any kind. In particular, the supplier cannot be held liable for personal injuries.
13.4 Extraneous Data: The supplier cannot provide a guarantee for the completeness and correctness of data, which is supplied for or installed on the purchased system by third parties. This also applies in particular to master data and payment data carriers of banks and the Post Office.
13.5 Extraneous Software: The supplier cannot provide a guarantee for extraneous software, which is supplied for or installed on the purchased system by third parties. This also applies in particular to software, which accesses data and programs of the supplier. If damage arises due to such data and software, the supplier rejects any liability.
13.6 Nullification: The supplier is relieved of its guarantee obligations insofar as a program error is attributable to circumstances for which the supplier is not responsible, such as in particular:
- Change in application and operational conditions
- Interventions in programs by the customer or third parties
- Influences by an extraneous service element or machinery and programs not supplied by the supplier
- Operating errors by the customer or third parties.
14. Industrial Property Rights Guarantee
14.1 Content: In the performance of its services, the supplier will not knowingly violate the industrial property rights of third parties.
14.2 Defence Obligation: Should third parties assert claims against the customer due to violation of industrial property rights allegedly belonging to said third parties, the customer will conduct its defence at its own expense insofar as the lawsuit demonstrates a direct link with the products provided by the supplier.
14.3 Measure: If, according to the judge’s ruling or supplier’s estimation, the work relationship violates the industrial property rights of third parties, the supplier has the right to make changes at its own expense in order to remove the violation of industrial property rights or to acquire the right of use from the more entitled third party. Insofar as such measures doe not lead to the objective and the violation is determined by means of a legally binding judgement, the supplier will compensate the customer for the loss of utilisation rights by repaying the fee paid, less the standard commercial depreciation during the duration of use.
15.1 Direct Damage: The supplier is liable for direct damage, which the customer suffers for some reason in conjunction with the performance of the contract, for example, arising from guarantee, non-fulfilment, violation of diligence, arrears or violation of industrial property rights, if such damages have been demonstrably caused by the supplier either negligently or deliberately.
15.2 Consequential Damage: Any further liability or obligation in relation to the performance of services under this contract and operation and use of the
work result and the results achieved with it (especially for indirect or consequential damages such as loss of profit, unrealised savings, extra expenditure by the customer or claims by third parties) is expressly excluded.
15.3 Prevention of Performance: The supplier is not liable, if, for reasons for which it is not responsible, it is hindered in the timely or correct fulfilment of services arising from this contract.
16.1 Despatch of data carriers (diskettes, tapes, etc.) by the customer to the supplier is at the customer’s risk. This is also valid, in particular, for data carriers, which are despatched for the purpose of determining faults or restoring data.
16.2 The despatch of data carriers (diskettes, tapes, etc.) by the supplier to the customer must be effected either by courier or by registered post. The supplier does not accept any liability for the loss or damage of data carriers correctly handed over against a receipt to the courier service or postal service. In particular the supplier cannot be held responsible for possible damages that the customer suffers or has suffered due to incorrect use of such data carriers.
17.1 Forbearance: The contractual parties give their mutual assurance not to hire, either for themselves or for third parties, the employees of the other party, who are engaged directly in performing work, nor those of the other party not engaged in the contract. The hiring of or use of the services in any form of employees of the other contractual partner may only happen with mutual written agreement.
17.2 Compensation: In the event of violation of the above provision, the party in breach of the contract is obliged to make an immediate compensation payment in the amount of one year’s salary of the poached employee, but not less than CHF 60,000.–.
18. Data Backup
18.1 Configuration: Generally, the basic version of the hardware recommended by the supplier contains a device for backing up data by means of diskettes. For reasons of security and convenience, the supplier recommends the acquirement of a streamer or some other state-of-the-art means of data backup.
18.2 Installation: The supplier installs this device to the best of its knowledge and conscience, but cannot guarantee that the backup will be functional at all times and can be restored.
18.3 Operational Security: The supplier offers to examine the purchaser’s data backup medium for physical readability. This examination takes place on-site with the customer, and is charged on the basis of effective time worked.
18.4 Frequency: The supplier recommends that the customer back up data on a regular basis after changes or additions to data on its computer system.
18.5 Data-Carrier Organisation: The supplier recommends to the customer that it use a separate set of data carriers for each day of the week. In addition, a data carrier can be created at the end of the month and kept until the next end of the month. Again at the end of the year, their own data carrier should be created and kept for at least 5 years.
19.1 Quote: The supplier tenders maintenance contracts for its sold hardware and software components. In terms of hardware, only complete computer systems can be incorporated into contracts.
19.2 Extraneous hardware: Extraneous hardware is excluded from maintenance contracts, unless otherwise explicitely mentioned in such contracts.
19.3 Extraneous Software: Extraneous software is excluded from maintenance contracts, unless otherwise explicitely mentioned in such contracts.
19.4 Maintenance Fees: Maintenance fees are invoiced annually at the beginning of the calendar year and are payable at the due date. Upon conclusion of a contract, invoices are issued pro rata to the end of the year. Provisions to the contrary must be explicitly mentioned in the contract. If the payment deadline is not adhered to, the supplier can refuse or delay performance of the contractual services.
19.5 Termination: A maintenance contract can be terminated by either party with a three month period of notice to the end of a calendar year by means of a registered letter; otherwise it is implicitly extended by a further year. Provisions to the contrary must be explicitly mentioned in the contract.
19.6 Location of the System: The customer is responsible for the location of the computer system being chosen so that operation of the system satisfies the supplier’s specifications, namely:
- vibration-free and stable location
- Normal operation at room temperature
- No direct sunlight or other influences, which can cause a major temperature fluctuation
- Sufficient room for air circulation and heat removal in and around the housing
- Dust, dirt and particle-free environment
- Correct electrical connection with correct earthing and tidy wire routing
- No high-frequency appliances in the immediate vicinity
- Easy accessibility to all devices
19.7 Limitations: In the event of malfunctions resulting from deficient erection of the system, maintenance services can be reduced or entirely cancelled. All maintenance services will be refused in the event of malfunctions resulting from incorrect operation, allowing the system or components to fall, intervention by third parties or due to force majeure such as earthquakes, unrest due to war or voltage fluctuations.
19.8 Procedure in the Event of Malfunctions: Before availing of maintenance services, the customer will use the means made available to it by the supplier to identify which hardware units require repair work. The customer immediately reports the identified malfunctions by telephone to the support office designated by the supplier. Insofar as is necessary, the customer will make the hardware available to the maintenance personnel. The supplier ensures that the maintenance services are carried out as quickly as possible during the service availability hours (08.00 – 12.00 and 13.30 – 17.00). If necessary and available, the customer will be provided with a loan device during the repair period at the conditions defined in the tariff.
19.9 Work Outside Service Availability Hours
(as per section19.8, 08.00 – 12.00 and 13.30 – 17.00)
Maintenance work commenced during service availability hours, will continue for a maximum of one hour beyond service availability hours at no surcharge to the customer. A prerequisite for this is that the hardware and software has been made available to the supplier’s technician immediately after his or her arrival at the installation location or via remote maintenance. If the maintenance has not been completed after this hour has elapsed, this activity will, if possible, be continued at the customer’s request and expense.
20. Final Provisions
20.1 Written Form: All appendices and any later modification agreements must be in writing with a reference to the relevant contract, and must be signed by both contractual parties.
20.2 Partial Nullity: Should portions of this contract or of an appendix be void or become legally inoperative, the rest of the contract shall continue to be valid. The contractual parties will then design and structure the contract such that the intended purpose of the void or legally inoperative portions is achieved to as great a degree as possible.
20.3 Legal Succession: The contractual parties undertake to transfer all rights and duties arising from this contract to possible legal successors.
20.4 Transfer of the Contract: This contract or individual rights and duties arising from it may only be transferred to third parties following prior written permission of the other contractual party.
20.5 Bindingness: This contract ant its appendices are binding with regard to the regulation of the relationship between the customer and the supplier in relation to the performance of the service. They take precedence over details during contract negotiations and deviating provisions in the customer’s order and in exchange of correspondence in respect of conclusion of the contract.
20.6 Invoicing: The offsetting of claims by the customer against outstanding accounts of the supplier subject to this contract requires the written agreement of both contractual parties.
20.7 Applicable Law: This contract is subject to Swiss law.
20.8 Amicable Settlement: In the event of a legal dispute in association with this contract, both contractual parties undertake to exhaust all mediation options.
21. Place of Jurisdiction
The supplier’s domicile is agreed as the place of jurisdiction.
Replaces all previously valid versions.