A) General provisions
for the sale of hardware and the licensing of software as well as for maintenance and services
1. content and validity
The respective contractual object is described in individual contracts between iTworks Bollmann (ib) and the customer. As a rule, the individual contracts are concluded in writing. The General Terms and Conditions (GTC) are an integral part of the individual contracts and are signed by the parties. For products which ib purchases from third party manufacturers/suppliers for the customer and resells or sub-licenses to the customer, the contractual terms of these manufacturers/suppliers shall apply. Amendments to the General Terms and Conditions and collateral agreements shall only apply if they have been confirmed in writing by the parties.
2. duty to inform
The customer shall draw ib’s attention in good time to his special technical requirements, insofar as they are of significance for the contractual services.
3. secrecy
Each party shall keep secret from third parties information from the business areas of the other parties which is neither generally accessible nor generally known. In particular, the Customer may not make the documentation, plans and other documents made available by ib accessible to third parties without the written consent of ib. Copying programs is only permitted within the scope of contractual use and after ib’s written consent.
4. deadlines and dates
Deadlines and dates are planning dates without maturity or fixed character. Only dates assured in writing, which are extended appropriately, are binding,
a. if ib does not receive the information it requires for execution in good time, or if the customer changes it subsequently;
b. if the customer is in arrears with the work to be performed by him or with the fulfilment of his contractual obligations;
c. if obstacles arise for which ib is not responsible.
5. performance of the service
ib may perform partial services at any time. In the event of delays, the customer shall set a reasonable grace period. ib’s liability for delayed performance shall be excluded to the extent permitted by law. Performance of the service shall be effected at the place of performance specified in the individual contract and against signed confirmation. The benefit and risk of the contractual products shall pass to the customer upon delivery. Until performance ib can make changes to the products which do not impair their function or the interaction with other products of the customer. The contractually agreed installation and commissioning of the products shall take place during ib’s business hours. The products are ready for operation after the tests provided by ib have been successfully completed. ib is not responsible for the consequences of installations carried out by the customer himself.
6. acceptance
The customer shall inspect the delivered products immediately and give notice of defects immediately, in written form and specified. If no notification of defects is made within 10 days of delivery, ib’s contractual performance shall be deemed to have been fulfilled. The right to specially agreed acceptance procedures shall remain reserved. Hidden defects shall be notified by the customer in writing immediately after discovery; otherwise the products shall also be deemed approved with regard to these defects.
7. terms of payment
The prices and licence fees as well as the payment modalities are subject of the individual contract. If the individual contract does not provide otherwise, expenses and ancillary costs as well as taxes and levies shall be borne by the customer. The amount of expenses and incidental costs shall be determined in the individual contract or in a corresponding appendix to the individual contract. If payment by instalments has been agreed, the entire remaining claim shall become due immediately if the customer is in default with one instalment. Each party may only set off its own claims against counterclaims of the other party acknowledged in writing. The parties may not withhold any payments or materials. ib may withhold its contractual services if and as long as the customer is in default.
7. terms of payment
The prices and licence fees as well as the payment modalities are subject of the individual contract. Unless otherwise stipulated in the individual contract, expenses and ancillary costs as well as taxes and levies shall be borne by the customer. The amount of expenses and incidental costs shall be determined in the individual contract or in a corresponding appendix to the individual contract. If payment by instalments has been agreed, the entire remaining claim shall become due immediately if the customer is in default with one instalment. Each party may only set off its own claims against counterclaims of the other party acknowledged in writing. The parties may not withhold any payments or materials. ib may withhold its contractual services if and as long as the customer is in default.
8. warranty ib delivers
ib shall deliver the contractual products in functional condition, in accordance with the technical documentation and the properties assured in writing. For maintenance and services it shall apply the proper degree of care. In the event of material, design, execution and program errors and defects, it may replace the affected parts. Replaced parts become the property of ib. ib shall not be liable for errors and defects for which ib is not responsible (force majeure, improper handling, interventions by the customer or third parties, operating errors, excessive strain, unsuitable operating materials or extreme environmental influences, etc.). ib shall carry out warranty work at its own discretion on its premises or at the customer’s premises, which shall grant it free access. Disassembly and assembly costs as well as transport, packaging, travel and accommodation costs shall be borne by the customer. If the fault or defect cannot be rectified, the customer shall be entitled to a price reduction and compensation for the proven direct damage, but in total to a maximum of 20 percent of the value of the defective product or service. Further claims are excluded; in particular, the customer may not withdraw from the contract or demand compensation for consequential damages. Any further material and legal warranty of ib is excluded.
9. warranty for products of third party manufacturers/suppliers
Products which ib purchases from third party manufacturers/suppliers and resells or sub-licenses to the customer are not warranted by ib, but exclusively by the third party manufacturer/supplier. The customer’s claims arise from the descriptions enclosed with the products or from the general terms and conditions of the third party manufacturers/suppliers. Any further material and legal warranty is excluded.
10. liability of ib
ib’s liability for damage incurred by the customer as a result of the contractual relationship shall be excluded to the extent permitted by law.
11. liability for products of third party manufacturers/suppliers
ib is not liable for products which ib purchases from third party manufacturers/suppliers and resells or sub-licenses to the customer, but exclusively the third party manufacturer/supplier. The customer’s claims arise from the descriptions enclosed with the products or from the general terms and conditions of the third party manufacturers/suppliers. Any further liability is excluded to the extent permitted by law.
12. customer requirements
The customer shall take the necessary preparatory measures, depending on the agreed services, to facilitate ib’s fulfilment of its contractual obligations. Expenses incurred by the customer due to inadequate preconditions may be invoiced additionally by ib.
13. reaction and standby times
If a response time has been expressly agreed, ib shall commence its work within the agreed hours. For work performed at the customer’s premises, the commencement of the journey shall be deemed the commencement of work. Subject to individual contractual agreements (e.g. stand-by service), ib shall provide the contractual services from Monday to Friday over the period from 08.00 to 17.00, not during company holidays and not on Swiss and local public holidays.
14. export The re-export of certain products
The re-export of certain products requires a special permit from the Import and Export Department of the Federal Department of Economic Affairs or the U.S. Department of Commerce, for which the customer must be responsible from the time of installation. In the event of a possible resale, the customer shall impose this condition in writing on the respective buyer, who shall be obliged to impose it on his part. ib shall name the body which can supply the necessary information on the import at the time if a special permit is requested.
15. transferability
The customer may resell hardware. License rights as well as other rights and obligations from the respective individual contracts may only be transferred to third parties with the written consent of ib. The Customer shall ensure that all obligations arising from software licenses, secrecy and any reservations of approval for re-export are transferred to the Customer. ib may transfer its rights and obligations arising from the individual contracts to third parties at any time.
16. duration of the contracts
The purchase and service agreements are fulfilled when both parties render services in conformity with the agreement. The duration of the license agreements is regulated in the individual agreements. The hardware and software maintenance contracts can be terminated with a notice period of three months to the end of the contract. Individual contractual deviations remain reserved.
B) Sale of hardware
17. retention of title
The products shall remain the property of ib until the purchase price and all ancillary costs have been paid in full. ib may have the reservation of title entered in the register with the competent authority and notify the owner of the property in which the customer has installed the machines thereof. If the customer defaults on payment, ib shall set a reasonable grace period, after the unused expiry of which it may withdraw from the contract and take possession of the products again. The customer owes compensation for the damage incurred.
C) Hardware and operating system maintenance
18. scope and content of services
The scope and content of the services are described in the maintenance contract.
D) Software licensing
19. ib grants services to the customer
ib grants the customer a personal, non-transferable and non-exclusive right to use the agreed license material (software products such as operating system and/or application software, associated material such as documentation and medium as well as updates, new versions and changes delivered later) on the hardware specified in the individual contract. The license entitles to use within the scope of the software product description and the contractual description of the license-dependent software domain (capacity license, user-limited license, user-independent license, workstation license or update license, etc.). Modification and copying of the license material requires the written consent of ib. Reserve engineering (decompilation; backward analysis of the machine-readable object code to the source code) is not permitted; any interfaces for cooperation with other IT products (interoperability) may be made accessible by ib. ib may revoke the customer’s license right if he violates the contractual provisions. In this case, the contract shall terminate with immediate effect and the Customer shall return the Licensed Material.
20. license fee
The license fee for the use of the Licensed Material is due during its use. It may be charged once or in installments. ib may change the rates for license fees to be paid in installments by giving three months’ notice to the next due date in each case. All rights to the license material of ib, in particular copyrights, patent rights and industrial property rights, shall remain with ib. The licence material constitutes a trade secret of ib. The customer may not make it available to third parties in any form, either in whole or in part.
22 Warranty The warranty is limited to
The warranty shall be limited to reproducible program errors and defects which the Customer documents in writing and informs ib in such a way that they are comprehensible. ib may supply a correction code, a corrected version or an alternative solution. ib does not guarantee that the licence material can be used uninterruptedly and error-free in all combinations desired by the customer, with any data, EDP systems and programs, and that the occurrence of other program errors is excluded by the correction of a program error.
23. third party manufacturers
In the case of software products from third-party manufacturers to which ib grants sublicense rights, the license terms of these third parties supplied with the software shall take precedence. In all other respects the above provisions shall apply.
E) Software maintenance
24. services ib takes over
ib takes over the ordinary maintenance of the software specified in the individual contract on the customer’s specified EDP system. ib accepts enquiries, notifications of defects and other functional faults and acts in such a way that the operation and operating comfort of the affected systems are ensured in the shortest possible time. It can call in specialists from the third party manufacturer concerned. ib always maintains the latest version of a software. For old versions, ib provides support for six months after the first delivery of a new version/change. ib may adjust the maintenance prices annually, subject to the notice period.
25. scope of maintenance
Maintenance includes the following services:
a. Telephone support for the customer on organizational and programming issues during business hours ib;
b. Information of the customer about innovations, changes and improvements of the software;
c. Delivery of program improvements (technical releases) and enhancements (functional releases) for installation;
d. Repair of reproducible errors and defects in the programs;
e. Updating of the documentation and other documents.
Not included in the maintenance contract are software updates/changes which become necessary due to statutory provisions or other specifications which are not within the sphere of influence of the contracting parties.
26. warranty
ib can supply a correction code, a corrected version or an alternative solution for the elimination of reproducible errors and defects in the programs. ib does not guarantee that the software it maintains can be used uninterruptedly and error-free in all combinations desired by the customer, with any data, EDP systems and programs, and that the occurrence of other program errors is excluded by the correction of a program error.
27. performances
The individual contract specifies which services have been agreed. ib offers the following services:
a. Business, IT and organizational consulting;
b. Planning of EDP systems, project management, installation and instruction, training. The installation work on the building side (cable laying, power supply, telecommunications etc.) is the exclusive responsibility of the customer.
are the sole responsibility of the customer.
28. costs ib calculates
ib calculates the costs of the services according to the current rates for consulting, installation and travel hours as well as for expenses.
G) Final provisions
These General Terms and Conditions are accepted by the customer with the signature on the order confirmation.
H) Place of jurisdiction and applicable law
The place of jurisdiction shall be the respective registered office of ib. The Swiss Code of Obligations is applicable.