General Terms and Conditions
Winworkers Schweiz GmbH - Version 01/05 dated 01/03/2005
I.
General Provisions – Scope of Application
1. The following terms and conditions apply exclusively and for all services and deliveries, in the framework of current business relations and for future relations, even if these terms and conditions are not expressively agreed upon.
2. We shall not recognize customers’ conflicting conditions or conditions differing from our own conditions, except for cases in which we agreed upon such conditions explicitely and in written form. Our own conditions will also apply if, even in knowledge of customers’ conflicting conditions, or conditions that differ from our own conditions, we provide deliveries and services to the customer without reservation.
II.
Contract Conclusion
1. A commitment to our written offers consists only if such a commitment was explicitly granted and for the duration quoted in the offer.
2. An order is accepted with the receipt of the written order confirmation based on the latest written offer and its fixed content.
3. Service and delivery descriptions provided with our written offers are obligatory only inasmuch as they are explicitly listed as part of the contract, respectively referred to as express terms.
4. All agreements made between us and the customer in reference to contract performance will be provided in writing in this contract.
5. To become effective, changes or supplements to this contract require the written confirmation both from the customer’s authorized representative and from our side.
6. We reserve ownership and copyright in images, drawings, calculations and other documents used and provided. This applies also to documentation marked as ‘vertraulich/confidential’. Forwarding and disclosure of such materials to third parties requires our written consent.
III.
Communication and Notification
1. If electronic mail is the contract partners’ agreed means of communications, they recognize the unlimited validity of declarations of intent transferred in this way under the following provisions:
a. The e-mail must carry the sender’s name and e-mail address, the date and time of transmission, as well as the sender’s name repeated to mark the end of the message.
b. Confidentiality is not provided for data transferred unencrypted over the Internet. Upon request, each contract partner will make available an agreed-upon encrpytion system such as PGP on his side.
2. Until proven otherwise, an e-mail received under such conditions is accepted as coming from the respective contract partner.
3. Commitment to e-mail and text form applies to all declarations required for regular contract performance. The text form is excluded however, for terminations, for measures leading to and during arbitration proceedings, and for delarations requested by a contract partner in written form, explicitly differing from this agreement.
IV.
Prices – Conditions of Payment
1. Prices are quoted in the respective written offer, respectively, if not otherwise agreed upon in writing, ruling prices are quoted in the price list effective at the time of order placement.
2. Additional services which are not included in the price list or the offer, are charged separately. This applies in particular to additional costs as a result of necessary and reasonable services provided by third parties, costs of license management, contracted test, retrieval and search services, as well as legal verifications and services provided outside of regular business hours.
3. Statutory value added tax is not included in our prices; it will be separately listed in the invoice in the legally required amount.
4. The deduction of cash discounts requires separate written agreements.
5. If not otherwise stated in the written offer on which the order placement is based, the invoice amount is due net (without deductions) within 30 days of invoice date. In case of default of payments, interest on overdue accounts will be charged at the legal rate of 5%
6. The customer has the right to counterbalance only if his counterclaims have become legally effective, are uncontested or recognized from our side. Exercising the right of retention is possible only inasmuch as the counterclaim is based on the same contractual relationship.
V.
Services and Deliveries
1. The extend of services and delieveries due is quoted in the written offer as the base for the order placement, the respective service description, and agreed changes and additions set down in writing.
2. If the customer’s interests require substantial changes to our contractual obligations, additional costs can be charged to the customer. This also applies to necessary analysis and testing to determine whether and under which conditions such changes and extentions are possible, if we made the customer aware of such additional cost requirements in writing.
3. Partial services and deliveries are authorized and can be charged to the customer separately, provided they are economically useful to the customer.
VI.
Deadlines
1. Binding and not binding service and delivery deadlines must be agreed in writing.
2. If the customer’s cooperation is required or agreed upon for our service/delivery, the deadline is extended by the time the customer has not met his obligation. The right to enter a plea for nonfulfillment of contract is reserved.
3. Delays due to changes in customers’ requirements, insufficient prerequisites in the user environment (hardware or software problems), inasmuch as we were not aware and should have been aware of such problems, problems with third party products (e.g. software of third party software providers; late deliveries to us), the service/delivery deadline is extended respectively.
4. Should the customer order changes and additions of not insignificant scale, deadlines set in view of the original contract extent become invalid.
5. If service or delivery deadlines are not met due to delays on our side and the customer has unsuccessfully set a reasonable extension period, the customer can withdraw from contract. Claims for damages based on breach of duty are excluded, unless we, or our vicarious agents, are guilty of gross negligence or acted intentionally.
6. Unforeseeable events beyond our control (e.g. delays in the delivery of essential components or other materials, import difficulties, operation and traffic disturbances, strike actions and lockouts, force majeure) extend the service and delivery deadline accordingly. If performance can not be granted even after reasonable extension of deadline, both the customer and ourselves may withdraw from contract. Customers’ claims for damages are excluded. Should we withdraw from contract, all payments already made to us will be reimbursed immediately.
VII.
Alterations
1. Stating important reasons, both contract parties have the right to require each other to meet and negotiate changes to the contract, the work description/performance specification or individual technical fine tuning of specifications.
2. If the customer requires changes to the adopted work descriptions/performance specifications or other specifications, we will analyse the scope of changes and charge time and materials needed for this analysis in accordance with our price list. We will determine whether the changes can be realized and inform the customer as soon as possible particularly about the anticipated extend of changes to costs and time frames.
3. As far as possible and necessary, we will also check to what extent such modifications will influence services and deliveries already realized and their usability.
4. Against compensation of outage time, the customer can demand partial or complete interruption of work realization until an agreement on the modification requirement has been reached. Possibly agreed service/delivery deadlines and time schedules are prolonged by the outage time and the time needed to reorganize work after the interruption and to make available necessary resources again.
5. The parties will agree and lay down requested changes in writing.
6. If no agreement can be reached in reference to the demand for alteration, the parties will, unless no other agreement was made, realize the project in accordance with the original agreement IAW No. V, item 1.
VIII.
Customers Duty of Cooperation
1. Not later than on the date the project starts, the customer will name a project representative who is authorized to give and receive legally binding statements for the customer.
2. The customer is responsible for adequate resources and information in the framework of his duty to cooperate. He will ensure the availability of a sufficient number of competent employees trained both in the customer’s line of business as well as in electronic data processing, and sufficient computer performance such as memory, processor and line performance.
3. Drafts and/or text versions provided to the customer with an adequate deadline for examination for accuracy and completeness become accepted and adopted if we do not receive a request for correction within the time limit given.
4. If we see the necessity, the customer will provide a test environment incl. hardware with current state of software, in particular the operating system corresponding with future operations, and the respective server software.
5. Should errors or interferences occur in the project, the customer will notify us immediately and in writing, providing the time, error specification, as well as the name and communication data (phone, email) of the notifying person in charge.
6. If the project involves our staff members’ presence on site, the customer will acknowledge the execution of services on a service ticket provided by us. If not otherwise agreed, the project representatives named in No. VII, Item 1, are authorized to sign such tickets, next to members of the management and authorized signatories.
7. In cases of customers’ default in acceptance or culpable violation of other duties to cooperate, we are authorized to demand payment of resulting damages, including possible additional costs. We reserve the right to claim further damages.
IX.
Customer’s Duty to Secure and Protect Data
The customer is responsible for regular backup of his data. In case of data loss caused by us, we are therefore liable for the cost of data reproduction from the backup copies provided by the customer, and for the recovery of data which would have also been lost in case of regular data backup only.
X.
Terms of Acceptance
1. The customer shall accept our services according to checklists provided by us for his assistance immediately after our notification of completion.
2. Our services are viewed as accepted once we gave notification of completion, and pointed out the significance of the declaration of acceptance, respectively the lack of it,
a. and the customer does not declare acceptance, or refuses acceptance by indicating deficiencies as detailed as possible, within a period of time that allows him the required thorough inspection and testing for essential errors; this testing period shall, however, not exceed ten working days.
b. or the customer productively uses our services without additional testing, as far as the non-acceptance is not based on a substantial deficiency of services provided by us.
XI.
Material Defects and Deficiencies in Title
1. The customer is obligated to give notice of obvious defects within 10 working days of delivery in writing, and by describing occuring defects as detailed as possible. Notice of defects which are not obvious shall be given within 10 working days of detection. Otherwise, claims from such defects can not be enforced.
2. If the customer notifies us of defects, we will provide rectification as follows:
a. We are authorized to provide remedy by subsequent improvement or new delivery. The customer may, within reasonable time, demand new delivery or subsequent improvement, if the respective other way of rectification is not acceptable for the customer.
b. Correction of faults may also be conducted by providing instructions to the customer by phone, in writing or by electronic means.
c. Should it turn out that a reported defect does indeed not exist, or was not caused by us, we are authorized to charge the customer with analysis and handling fees in accordance with our current price list.
3. Should we be unable to provide rectification within a reasonable time that allows at least two trials, the customer is authorized to give one last additional respite. Should we be unsuccessful again, it is the customer’s choice to reduce the compensation or withdraw from contract.
4. Customers’ keeping or fixing time limits is dispensable if it is unreasonable, particularly if we refused a rectification finally and seriously.
5. The attempt to provide rectification is not considered a final failure after the second trial. The number of trials during additional respite periods is rather up to us and depends on the type of deficiency, the special circumstances (e.g. personnel), as well as the type of affected software/hardware (involvement of third parties and more). We will, after a reasonable time, notify the customer of the circumstances and require him to declare his intent for further action within reasonable time.
6. In addition to the withdrawal from contract and the reduction of compensation, the customer may, if we are at fault, claim damages instead of performance or claim incurred expenses.
7. The right to withdraw from contract and claim damages instead of complete performance does only occur in case of substantial defects.
8. In case of customer’s rightful withdrawal from contract, we are authorized to demand reasonable compensation for customer’s usage of goods or services up to the time of settlement.
9. Claims for material defects and deficiencies in title come under the statute of limitations one year after acceptance, respectively delivery. This does not apply in case of No. X, item 10.
10. Implied warranties remain unaffected in case of fraudulence and warranties granted by us.
11. We and/or third parties have the copyright for programs created by us. It constitutes a deficiency in title if required rights for the contract-based usage could not be legally granted to the customer. The customer will notify us immediately should a third party assert a claim for the breach of copyright against the customer for the use of programs; as far as possible, the customer will also leave the defence against such claims up to us. The customer shall support us in this matter in any reasonable way. The customer will, in particular, provide us with all required information about the usage and possible editing of programs preferably in writing, and hand over respective documentation to us.
12. Inasfar as third-party rights are violated, we are authorized to provide rectification of defects by
a. obtaining usage rights from the copyright owner for the customer sufficient to cover the scope of the contract, or
b. edit the software in question with no or acceptable impact to its usage for the customer, or
c. exchange the software in question with no or acceptable impact to its usage for the customer against a software that can be used in the scope of the contract without any copyright infringement, or
d. provide a new program version that does not infringe copyrights by usage in the scope of the contract.
13. The above provisions of No. X. become effective in the case of deficiencies in title respectively.
XII.
Limitations of Liability
1. We are liable for damages from any legal argument to the extent of these provisions.
2. Our liability for damages caused by us or one of our vicarious agents or legal representatives willfully or with gross negligence is unlimited.
3. Damages to life, body or health result in unlimited liability if caused by negligence by us, our legal representatives or vicarious agents.
4. Our liability for the violation of important contractual obligations is limited to the predictable contract-typical damage, unless No. XI, items 2-4, 7, become effective.
5. Any additional liability for damages, particularly if we are not at fault, is excluded.
6. Should a damage be caused both by us and the customer, the customer shall accept responsibility for his contributory negligence.
7. Liability in accordance with the product liability law remains unaffected.
XIII.
Secrecy and Data Security
1. The contract partners are obligated to treat each other’s confidential information and documentation - both information that is obviously confidential or has been indicated confidential by the contract partner – as trade secret.
2. The customer will treat all delivered programs, codes and documentations, as well as concepts, as our trade and business secrets.
3. Our staff members are committed to data security. Additionally, the customer is responsible for compliance with all laws and policies on data protection and data security.
XIV
Usage Rights – Third-Party Materials – Service Fee
1. If not otherwise agreed upon, the customer is granted simple and non-transferrable usage rights to programs created by us. This usage right is acquired upon complete payment of all services and deliveries.
2. If we use software or other copyright-protectable materials provided by the customer, we assume that such software or materials are not protected by third-party rights or that the customer is in possession of all required usage rights.
3. In as far as we are using third-party rights (license material) for our services and deliveries in the name of and for our customer, particularly those which can only be granted to the customer in an (especially timely) limited way, the customer realizes that the limited provision may – among other aspects – lead to the fact that, uncontrollable by us, third-party license material may at one point be available under considerably altered conditions, or not at all. The customer will take over all protection notes, such as copyright notes and other legal reservations, unchanged. This applies in particular to author’s notes in the program code.
4. We are authorized to charge the customer with costs for third-party license material by presenting the licensor’s invoice, plus a 15% service charge.
XV.
Applicable Law – Place of Fullfillment – Place of Jurisdiction
1. The contract partners agree on the application of Swiss law to all legal relationships from the contractual relationship
2. If not otherwise agreed upon, place of fullfillment for performances by both parties the domicile of Winworkers Schweiz GmbH.
3. The place of jurisdication for all legal action from and in the context of this contract is the domicile of Winworkers Schweiz GmbH.
The present terms and conditions are provided both in German and English language. In case of discrepancies or vagueness, the German version shall prevail.