General terms and conditions
Comout IT AG
1. General - Scope
1.1 The following terms and conditions shall apply exclusively and to all our services and deliveries, in the context of current business relations also to future ones, even if these terms and conditions are no longer expressly agreed.
1.2 We do not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we perform services and deliveries to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions.
2. Contract closure
2.1 We shall only be bound by our written offers if such an offer has been expressly declared in the individual case and only for the duration of the binding period. Unless otherwise agreed, this shall be 14 days.
2.2 An order shall be deemed accepted only after receipt of the written order confirmation based on our latest offer letter with the contents set forth therein in writing.
2.3 The service and delivery descriptions attached to our offer letters are only binding insofar as we expressly list them as part of the contract or expressly refer to them.
2.4 All agreements made between us and the client for the purpose of executing this contract are set down in writing.
2.5 Changes or additions to this contract require written confirmation by authorized representatives of the customer as well as by us in order to be effective.
2.6 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents produced by us. This also applies to such written documents which are designated as "confidential/confidential". The client must obtain our express written consent before passing them on to third parties. The client retains the property rights and copyrights to illustrations, drawings, calculations and other documents or records of the material produced by him.
3.1 Insofar as the contracting parties agree on the use of electronic mail (e-mail), they recognize the unrestricted validity of the declarations of intent transmitted by this means in accordance with the following provisions:
a) The e-mail must contain the sender's name and e-mail address, the time of sending (date and time), and a rendition of the sender's name to conclude the message.
b) Confidentiality is not guaranteed for data transmitted unencrypted on the Internet. At the request of the other, each contracting party shall provide an agreed encryption system such as PGP on its side.
3.2 An e-mail received within the scope of the above provisions shall be deemed to have originated from the other Partner, subject to proof to the contrary.
3.3 The binding nature of the e-mail and thus of the text form shall apply to all declarations which the ordinary execution of the contract entails. However, the text form is excluded for notifications that trigger or entail legal consequences, such as a termination, measures for the initiation or execution of arbitration proceedings, as well as declarations that are expressly requested in writing by a contractual partner in deviation from this agreement.
4. Prices - Terms of payment
4.1 The prices are based on our offer letter on which the order is based; otherwise, unless otherwise agreed in writing, they are based on our price list valid at the time the order is placed.
4.2 Additional services not included in the price list or the offer shall be remunerated separately. This shall apply in particular to additional expenses resulting from the necessary and reasonable use of third-party services, expenses for license management, commissioned testing, research services and legal audits as well as services provided outside business hours.
4.3 The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
4.4 The deduction of a discount requires a special written agreement.
4.5 Unless otherwise stated in our offer letter on which the order is based, the invoice amount is due for payment net (without deduction) within 30 days of the invoice date. From the 31st day onwards, the debtor shall be deemed to be in default and the statutory default interest of 5 % shall be charged.
4.6 The customer shall only be entitled to offset counterclaims if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. Scope of services/delivery
5.1 The deliveries and services owed by us are set out in our offer letter on which the order is based, together with the task description and the amendments and supplements agreed in writing.
5.2 In the event of a significant change to our contractual obligations for the purpose of adapting them to the interests of the customer, we may charge the customer for the necessary additional expenditure. This shall also apply to an extensive examination as to whether and under which conditions the change or extension is feasible, insofar as we have indicated this in writing.
5.3 Partial services and deliveries are permissible and may be invoiced separately, unless they are not economically viable for the Client.
6.1 Performance/delivery dates or deadlines that can be agreed upon as binding or non-binding must be in writing.
6.2 If the cooperation of the customer is required or agreed for our service/delivery, the service/delivery time shall be extended by the time the customer has not fulfilled this obligation. We reserve the right to plead non-performance of the contract.
6.3 In the event of delays due to changes in the customer's requirements, insufficient prerequisites in the application environment (hardware or software deficiencies), insofar as they were not known to us or should have been known to us, problems with third party products (software of other EDP manufacturers; failure of our own suppliers to deliver on time), the performance/delivery date shall be extended accordingly.
6.4 If the customer orders changes or additions that are not only minor in scope, dates and deadlines that are based on the original subject matter of the contract shall lose their validity.
6.5 If we are in arrears with the service or delivery owed for reasons for which we are responsible and the customer has unsuccessfully set us a reasonable period of grace, he may withdraw from the contract. Claims for damages by the customer due to breach of duty are excluded, unless we or our vicarious agents have acted with gross negligence or intent.
6.6 Unforeseen events for which we are not responsible (delays in the delivery of essential components and other materials, import difficulties, operational and traffic disruptions, strikes, lockouts, force majeure) shall extend the performance and delivery period appropriately. If we are unable to perform even after a reasonable extension, both the customer and we shall be entitled to withdraw from the contract. In such a case, we shall immediately reimburse the customer for all payments already made.
7.1 Both contracting parties shall be entitled to request the other contracting party to discuss and negotiate amendments to this contract, the terms of reference/duty specifications or the individual technical fine specifications, stating important reasons.
7.2 Insofar as the client wishes to make changes to already approved task descriptions/specification books or specifications, we will, against payment on a time and material basis in accordance with our price list, check the effort involved and whether the desired change is feasible, and then inform the client as soon as possible of the changes that are likely to result, in particular with regard to costs and the time schedule.
7.3 To the extent possible and necessary, we will also examine the extent to which such a change affects previously realized services or deliveries and their usability.
7.4 In return for compensation for the downtime, the client can demand partial or complete interruption of the realization until agreement is reached on a change request. Any agreed performance/delivery deadlines and schedules shall be extended accordingly by the downtime as well as by the time we need to organize the resumption of work after an interruption and to make the necessary resources available again.
7.5 The parties will specify the desired changes in writing and sign them on both sides.
7.6 If no agreement is reached on a change request, the Parties shall, unless they agree otherwise, implement the Project in accordance with the original agreement pursuant to Section 5.1.
8. Cooperation obligations of the customer
8.1 At the latest at the beginning of the execution of the order, the client shall name a project manager who is also authorized to issue and receive legally binding declarations on the part of the client.
8.2 The client is responsible for sufficient resources and information within the scope of his duty to cooperate. He will ensure the availability of the required number of competent employees from a professional and IT technical point of view and sufficient computer capacities such as memory, processing power and line capacities.
8.3 Insofar as we provide the customer with drafts and/or test versions, specifying a reasonable period of time for checking for correctness and completeness, the drafts and/or test versions shall be deemed approved upon expiration of the period of time, insofar as we do not receive a request for correction.
8.4 If we deem it necessary, the customer shall provide us with a test environment (hardware with current software version, in particular the operating system and the corresponding server software corresponding to the later conditions of use).
8.5 As soon as errors or impairments occur in the project, the client will inform us immediately in writing, stating the time and error specification as well as the name and telecommunication data (telephone, e-mail) of the reporting and responsible employee.
8.6 The client shall confirm our services, insofar as we are active with our employees on site at the client, with regard to the execution, on the work report provided by us for this purpose. Unless otherwise agreed, the project managers named in Section 7.1. shall be deemed authorized to countersign the work reports in addition to the management and authorized signatories.
8.7 If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for any damage incurred by us as a result, including any additional expenses. Further claims remain reserved.
9. Obligation of the customer to back up data
9.1 The client is responsible for the regular backup of its data. In the event of a loss of data for which we are responsible, we shall therefore be liable exclusively for the costs of copying the data from the backup copies to be made by the client and for restoring the data that would have been lost even if the data had been properly backed up.
10.1 The client shall accept our services without delay in accordance with the checklists provided by us for his support as soon as we notify him that they are ready for acceptance.
10.2 Our services shall be deemed to have been accepted when we have given notice of readiness for acceptance with reference to the consequences of failure to make a declaration of acceptance
a) and the client does not thereupon declare acceptance within a period of time that allows him to recognize significant defects during the required careful inspection, but at the latest after 10 working days, or refuses to accept the goods stating the defects to be detailed
b) or the client uses our service productively without further testing, insofar as the non-acceptance is not based on a significant defect in the services provided by us.
11. Defects of quality and title
11.1 The customer is obliged to give written notice of obvious defects within 10 working days of delivery, describing the defects that have occurred in as much detail as possible. Defects that are not obvious must be notified to us within 10 working days after they are recognized. Otherwise, claims arising from these defects cannot be asserted.
11.2 If the customer notifies defects, we shall provide subsequent performance as follows:
a) We shall be entitled to remedy the subsequent performance at our discretion by rectification or by new delivery. The customer may demand a new delivery or rectification within a reasonable period of time if the respective other form of subsequent performance is unreasonable for him.
b) The elimination of defects by us can also be done by telephone, written or electronic instructions to the client.
c) If it turns out that a defect reported by the customer does not actually exist or is not attributable to us, we shall be entitled to charge the customer for the expenses incurred in connection with the analysis and other processing in accordance with our current price list.
11.3 If we are unsuccessful in rectifying the defect within a reasonable period of time which allows at least two attempts at rectification, the customer shall be entitled to set us a reasonable final period of grace. The subsequent improvement shall be free of charge. If we are also unsuccessful within this last grace period, the customer shall be entitled to reduce the remuneration or to withdraw from the contract, at his discretion.
11.4 Waiting for deadlines and setting of deadlines by the customer is dispensable if this is no longer reasonable for the customer, in particular if we have finally and seriously refused subsequent performance.
11.5 Subsequent performance shall not be deemed to have failed definitively with the second attempt at subsequent performance. Rather, during the grace periods, we shall be free to determine the number of subsequent performance attempts depending on the nature of the defect, the particular circumstances and the nature of the software/hardware concerned (involvement of third parties). We will, after the expiry of the reasonable period, notify the client of this and request the client to explain within a reasonable period how the client will proceed.
11.6 In addition to rescission and reduction, the customer may, if we are at fault, claim damages in lieu of performance or reimbursement of expenses.
11.7 The right to withdraw from the contract and claim damages in lieu of the entire performance exists only in the case of significant defects.
11.8 In the event of justified withdrawal on the part of the customer, we shall be entitled to demand reasonable compensation for the use made by the customer up to the point of reversal.
11.9 Claims based on material defects and defects of title shall become time-barred one year after acceptance or delivery. This shall not apply in the case of Clause 11.10.
11.10 In the case of fraudulent intent and in the case of the assumption of a guarantee by us, the statutory warranty provisions shall remain unaffected.
11.11 We and/or third parties are entitled to copyrights to the programs created by us. A defect of title exists if the rights required for the contractual use could not be effectively granted to the client. If a third party asserts the infringement of property rights against the customer due to the use of the programs, the customer shall inform us of this immediately and leave the defense against these claims to us as far as possible. In doing so, the customer shall provide us with all reasonable support. In particular, the Customer shall provide us with all necessary information on the use and possible processing of the programs, if possible in writing, and shall provide us with the necessary documents for this purpose.
11.12 If the rights of third parties are infringed, we may, at our discretion, remedy the infringement by
a) obtain from the third party holding protected rights a right of use in favor of the Customer sufficient for the purposes of this Agreement, or
b) change the software infringing third party rights without or only with effects on its function acceptable to the Customer or
c) replace the software infringing third party rights without or only with effects acceptable to Customer on its function with software whose use in accordance with the contract does not infringe third party rights or
d) deliver a new program version, the use of which in accordance with the contract does not infringe any rights of third parties.
11.13 For the rest, the comprehensive regulations in Section 11 apply accordingly in the case of defects of title.
12. Limitation of liability
12.1 We shall be liable for damages for any legal reason in the amount according to these provisions.
12.2 Our liability for damages caused by us or one of our vicarious agents or legal representatives intentionally or through gross negligence is unlimited in amount.
12.3 In the case of damages resulting from injury to life, body or health, our liability, even in the case of a simple negligent breach of duty, or of one of our legal representatives or vicarious agents, is unlimited in amount.
12.4 In the event of a breach of material contractual obligations, our liability shall be limited to the amount of the foreseeable damage typical for this type of contract if none of the cases specified in Sections 11.2.-11.4. and 11.7. apply.
12.5 Any further liability for damages, in particular liability without fault, is excluded.
12.6 If damage is attributable to both our fault and the fault of the customer, the customer must allow his contributory negligence to be taken into account.
12.7 The liability based on the Product Liability Act is preserved.
13. Secrecy - Data protection
13.1 The contracting parties undertake to treat confidential information and documents of the other contracting party, which are either obviously to be regarded as confidential or are designated as such by the other contracting party, as trade secrets.
13.2 The customer shall treat all programs, codes and documentation as well as concepts supplied by us as our trade and business secrets and shall not make them accessible to third parties. The obligations to maintain secrecy shall continue to exist without restriction even after termination of the contract.
13.3 Our employees are bound to data secrecy. In all other respects, the parties are responsible for compliance with laws and regulations on data protection and data security.
14. Rights of use - Third-party material - Service surcharge
14.1 Unless otherwise specified, we grant the customer a simple and non-transferable right of use to programs created by us. The customer shall acquire this right only upon full payment of our services and deliveries.
14.2 When using software or other protectable materials provided by the client, we assume that these are not encumbered with third-party rights or that the client has the rights of use required for the order.
14.3 Insofar as we also make use of third-party rights (third-party license material) in the name of and on behalf of the Customer for our services and deliveries, which can only be transferred to the Customer - in particular for a limited period of time - the Customer is aware that the limited transfer may result in third-party license material no longer being made available or being made available under significantly changed conditions over which we have no influence. The client will take over all protective notes such as copyright notes and other legal reservations unchanged. This shall also apply in particular to the references to the author made in the program code.
14.4 We may invoice the client for the costs of third-party licensed material by presenting the licensor's statement with a service surcharge of 15 %.
15. Applicable law - Place of performance - Jurisdiction
15.1 The contracting parties agree that Swiss law shall apply to all legal relationships arising from this contractual relationship.
15.2 Unless otherwise expressly stipulated, the place of performance for all mutual performances under the contract shall be the registered office of Comout IT AG.
15.3 The place of jurisdiction for legal disputes arising from and in connection with this contract is the registered office of Comout IT AG.