Terms and Conditions
1 General Information
1.1 ISPIN AG renders their services and products, specified in particular in chapter 2, based upon these General Terms and Conditions (GTC). They apply also to all future business relations even if they are not again expressly agreed upon. Customers counter confirmations under reference to his own General Terms and Conditions will expressly not be acceptable.
1.2 This GTC is considered to be accepted by the customer as soon as ISPIN AG submits an offer.
1.3 Variations of the GTC are legally binding only by explicit written acknowledgement of ISPIN AG with authorised signature.
1.4 Employees and subcontractors of ISPIN AG are not authorised to meet oral agreements and warranties not accomplishing at least the requirements of the respective contract including these GTC.
1.5 ISPIN AG is at any time authorised to modify these GTC including all appendixes such as user instructions, specification of services etc. within an appropriate period of notification. If Customer does not contradict the modified GTC within at the latest two weeks after the notification of modification, the modified GTC shall become effective. If the customer contradicts punctually, ISPIN AG is entitled to terminate the agreement up to the time the modified conditions shall become effective.
2 Terms and definitions
Supplier ISPIN AG and their employees
Products Services, consulting services, know-how, documents, offers, documentations, concepts, methods, procedures, designs, outlines, samples, soft-ware, data, data medium, source-code, patents, licenses, etc.
Customer Client and user of the supplied Products.
3 Offer
3.1 Without any other reference to the Customer’s inquiry the offer including demonstration of Products takes place free of charge.
3.2 Supplier refers expressly to any deviation between the offer and the inquiry of Customer.
3.3 If not otherwise agreed in written form, the offer is valid within the scope of 30 days effective from the date of the offer.
3.4 All documents and samples delivered with the offer remain property of Supplier.
3.5 Without Supplier’s consent third parties are not allowed to see the offer or any respective documents. Especially it is forbidden to pass down the offer and other respective documents to any competitors of Supplier.
3.6 Specifications being denominated by Supplier as a benchmark are not binding and shall only form an estimate.
3.7 Up to the signing of the contract and/or up to the written acceptance of the offer the contractual parties can withdraw contract negotiations without financial consequences.
4 Conclusion of the contract
4.1 To conclude the contract it is necessary to have the contract countersigned by Supplier or by receiving an acceptance of order from Customer. If the content of the offer confirmation deviate it will be only legally binding by Supplier having confirmed in writing any discrepancies.
4.2 To conclude the contract a guaranty or an advance payment might be required.
4.3 As far as Supplier uses services of third parties the latter will not be contracting party of Customer.
5 Time of Performance
5.1 Supplier commits itself to supply the agreed Products according to the time specified in the offer confirmation. On the other hand Customer commits itself to accept and pay such agreed Products at the fixed time.
5.2 Only written fixed dates are legally binding. Such dates will be prolonged appropriate, whensoever:
a) information necessary for the performance of the contract will not be received on time or is modified retrospectively;
b) Customer being in arrears with its deliverables or its specified duties, especially not observing conditions of payment;
c) Circumstances such as phenomena, mobilisation, war, riot, epidemic, accidents and disease, considerable disruption of operations, industrial conflicts, delayed or incorrect supply as well as regulatory sanction.
5.3 Supplier can execute short delivery.
5.4 In case of an obstacle to the performance, Customer obligates itself to notify Supplier and to grant a fair and reasonable respite to al later fulfilment. If Supplier is not able to fulfil its obligations until expiration of the additional respite, Customer is authorized, after having notified Supplier within 30 days, to abandon the right of an additional performance or to withdraw from the contract. Further demands or expenses based on delay of deliveries will not be met.
6 Scope of delivery and Fulfilment
6.1 The scope of delivery and its fulfilment is determined by the offer confirmation.
6.2 Supplementary orders, special requests or requests for modifications by Customer have to be analysed by Supplier within two working weeks. He will decide whether such changes will be possible and what will be the consequences regarding scope of delivery, time of performance and costs.
6.3 Supplier will never be obliged to accept such supplementary orders, special requests or requests for modifications.
7 Place of delivery / passing of risk
7.1 If not otherwise agreed place of delivery will be at Customer’s place.
7.2 Benefit and risk of any Products will pass to Customer at the place of delivery.
8 Payment
8.1 Supplier will deliver its Products at the costs agreed upon. If the costs are not agreed Customer has to pay any Supplier’s expenses, costs etc. based on the cur-rent rate of remuneration.
8.2 If not otherwise agreed upon, any expenses, costs, remuneration etc. are calculated in Swiss Francs, excl. of VAT, any duties, taxes, freight charges, package costs, installation and commissioning costs, expenses for support, training and insurances.
8.3 Billed services are at latest payable without reduction within 30 days of the issuing day.
8.4 If not otherwise agreed upon, Supplier is authorised to impose advance payment up to 50% of all round price as well as accept part payment amounting to provided delivery.
8.5 Customer can declare setoff against claims from Supplier only by Supplier’s written consent or by providing a legally binding court decision.
8.6 If there is an undue delay in the payment, delinquency interest in the amount of 8% per annum shall be paid without any reminder.
8.7 Supplier’s Products will be in its proprietary until full payment by Customer. Furthermore, Supplier will be authorised to withdraw from agreed deliveries and to reclaim all delivered Products. Finally, Supplier is also authorised to protect his Products against the right of retention.
8.8 Supplier will be not limited by mentioned claims:
9 Duty of Supplier
9.1 Supplier has to deliver his Products in good quality and with reasonable care.
9.2 Supplier has to accurately select his employees, to care for their education, their professional proceeding as well as an appropriate supervision.
9.3 Customer is authorised to obtain a monthly report of the project status. On Customer’s demand Supplier is providing the members name of the project as well as their role in the project.
10 Duty of Customer
10.1 If necessary, Customer makes available suitable workrooms and hardware. Customer shall also grant admission to the relevant premises.
10.2 Customer shall provide Supplier with all relevant, current and necessary information and products in order to fulfill the contract.
10.3 Customer has to accurately select his project members, to care for their education, their professional proceeding as well as an appropriate supervision. On Supplier’s demand Customer is providing the members name of the project as well as their role in the project.
10.4 Customer shall duly allocate the necessary staff in order to test and approve applications as well as to afford them the necessary education and handling regarding the specific Products. Furthermore, Customer shall make available in due time the necessary equipment. He shall also be concerned about supervising their tasks and will be jointly responsible to achieve a correct and convenient contract delivery.
10.5 Furthermore, Customer shall:
a) Pay the remuneration and all recompenses agreed on time;
b) Not dispose Supplier’s Products improperly and shall not act in any illegal way;
c) Comply with legal and regulatory terms and provisions. Customer shall also concern about necessary permissions from authorities;
d) Comply with relevant principles of data security especially to store and keep secret password and to replace immediately password or to initiate specific modifications if unauthorised third parties might have acknowledgment of the accordant passwords;
e) Notify Supplier of recognisable defects or damages (incidents);
f) To take all reasonable measures to detect such incidents and their reasons or to dispose them as fast and easy possible.
11 Guarantee and claim
11.1 Supplier guarantees to act accuracy and to deliver Products with the properties as written agreed upon. Even if Supplier performs accuracy Customer is aware of software development and consulting being not always error free.
11.2 Supplier will not be liable for defects, incidents like natural abrasion, act of god, improper or immoderate treatment by Customer or any third party, other interferences by Customer or any third party, improper resources, not predictable and surpassing environmental effects etc.
11.3 Supplier does not guarantee and will not be liable in case of Customer’s negligence especially if the Products have been modified or applied unauthorized by Customer or any third party.
11.4 Supplier does not guarantee and will not be liable for damages arising out of violated contractual obligations by Customer, for damages arising out of operational tests or data recovery. Supplier shall under no circumstances accept liability for consequential loss, lost profit, loss of data etc.
11.5 All mentioned limitation regarding guarantee and liability apply to any subcontractors of Supplier.
11.6 Provided that the relevant properties were written agreed upon in the contract and Supplier acted not accurately, Supplier will eliminate defects as long as Customer is able to properly document the defects.
11.7 The contracting parties shall agree upon the modalities of delivery and acceptance procedure otherwise Customer has to verify any Products of Supplier. Supplier has to be properly written notified of any defects.
11.8 Supplier has to be notified by Customer within two working weeks, otherwise the delivered Products will be free of defects and approved by Customer.
11.9 Customer has to pay in due time even if a delay of an agreed acceptance procedure occurred not being caused by Supplier.
11.10 Any prescription period will not be interrupted by acknowledgment or abolishment of an defect.
11.11 No further claims are possible regarding liability and guarantee.
12 Duty to supply Information
12.1 The contracting parties shall duly point out special technical requirements, as well as legal, regulatory and other provisions at the place of final destination as long as they are important for the need and execution of the Products.
12.2 Moreover, the contracting parties shall duly inform each other about obstacles preventing fulfillment of the contract or achieving inexpedient solutions.
13 Intellectual property rights
13.1 With the exception of agreed rights of use, Supplier or licenser are generally owner of all industrial and intellectual property rights especially industrial property rights, patent and intellectual property rights incl. exploitation rights and rights of modification regarding the delivered Products. Unless otherwise agreed, Supplier is owner of the source code.
13.2 Products in particular ideas, concepts, methods, practices and patent rights on inventions which has been developed or worked out by Supplier during the completion of the contract exclusively belong to Supplier.
13.3 In consideration of secrecy requirement, Supplier shall have the right to use the result of a working process or its copy or modifications for advertising and/or other projects.
13.4 In particular and in addition to paragraph 13.1-3 the following applies:
a) If not otherwise agreed in written form, Supplier shall transfer to Customer free of charge the unlimited, not exclusive right to use regarding the Products developed by Supplier as agreed upon;
b) Customer shall have the immediate right of use; he is not allowed to resell it or to rent it to any third party or the use it in any other manner;
c) If not otherwise agreed in written form, Customer does not have any right of use until having completely paid the negotiated Products;
d) Regarding paragraph 13.2., any developed Products of Supplier will stay the intellectual property of Supplier;
e) Supplier’s software is protected by intellectual property right. Customer is allowed to use the software excl. making copies, leaving it to any third party, modifying it or making the source code available to any third party;
f) Regarding software, the provisions of Supplier’s license agreement resp. the manufacturer are exclusively valid. A multiple right of use needs a special agreement in written form.
14 Intellectual property rights of 3rd parties
14.1 Written information about Supplier’s Products and company name are protected which Customer has to accept.
14.2 Both parties assure each other that any products used or fitted in a business case do not compromise any intellectual property rights of a third party.
14.3 Nevertheless, if a third party raise a claim regarding breach of his intellectual property right Customer shall immediately inform Supplier in writing. Without prior consent of Supplier, Customer shall not start fundamental proceedings. On Supplier’s request, Customer shall assign Supplier to conduct the case incl. negotiating settlements.
14.4 Is any right of use of a subject of the contract prohibited by a court of justice or might there be a future claim regarding intellectual property right in Supplier’s reasonable opinion, then Supplier shall have the following choice:
a) To modify relevant Product in order not to breach any intellectual property rights;
b) To redress Customer to use relevant Product;
c) To substitute the relevant Product with a similar Product not breaching any intellectual property rights and complying with Customer’s request;
d) To redeem relevant Product and refund Customer’s paid remuneration less an adequate amount for using the Product and the obsolescence;
14.5 The preceding obligations is not valid as long as Customer is responsible for breaching the intellectual property rights by modifying the relevant Product or based on a Customer’s conception or used together with other equipment not delivered by Supplier. If a party infringes any intellectual property rights is held liable therefore, and shall hold concerned party harmless against any claims.
15 Confidentiality
15.1 The contracting parties shall disclose all confidential and proprietary information (the „Confidential Information“) to recipient. Confidential information shall include all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, to recipient by the other party. The recipient agrees that the Confidential Information is to be considered confidential and proprietary to the other party and recipient shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with the other party, and shall not disclose it to unauthorized third parties.
15.2 The contracting parties shall disclose such Confidential Information within their company only to employees being involved in the relevant business. These employees have to meet the same secrecy.
15.3 The contracting parties shall not use such Confidential Information for their own profit or the profit of any third party. If not otherwise agreed, they also shall not use them for research or development purposes.
15.4 Otherwise, it is allowed to use made cognitions out of the collaboration. If any party likes to promote the collaboration, the other party shall give prior written consent.
15.5 The obligations regarding confidentiality shall be effective from the date of conclusion of the contract as well as after termination of the contract.
15.6 The obligations regarding confidentiality shall not be effective
a) If informant has no veritable interest any more to the confidentiality;
b) If recipient already is aware of the relevant information;
c) If the information is well-known and public.
15.7 An infringement on these regulations entitles the other party to claim for a contract penalty amounting CHF 50'000.- for each case of contravention as long as he is not able to be evidence of his innocence. Any claims based on superior damages remain applicable. The obligations regarding confidentiality also remain applicable.
16 Liability
16.1 In the event of any claims Supplier shall assume limited liability within the scope of his indemnity insurance for loss of property and in the case of personal injury which have been caused by intent or gross negligence resp. by subcontractors.
16.2 Supplier’s liability for financial loss and consequential damages – insofar as legally permissible – is excluded.
17 Scope of validity and termination
17.1 These General Terms and Conditions (GTC) apply to all Products. These GTC can be terminated by each contracting party at the end of a the following month. But the GTC will be valid regarding already delivered and agreed Products.
17.2 Did Supplier not agree to deliver or produce a fully functional system or products, Customer is allowed to revoke the order as legally permissible and Supplier shall hold Customer harmless, especially in the amount of paid compensation and benefit.
18 Applicable Law
18.1 Swiss Law shall exclusively apply to this contractual relationship to the exclusion of the Vienna Sales Contract Law (United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on April 11, 1980).
18.2 If not otherwise agreed the provisions of Article 394ff OR (civil law, part 5) is applicable.
18.3 Subject to mandatory places of jurisdiction under federal law, exclusive place of jurisdiction - with the exception of 18.4 - for all disputes arising out of this contractual relationship is Bassersdorf, the domicile of ISPIN AG.
18.4 Supplier is also allowed to claim at Customer’s domicile.
18.5 Customer herewith expressly declares to accept place of jurisdiction above-mentioned under 18.3.
19 Final conditions
19.1 If any terms of these GTC is held by a court of competent jurisdiction to be invalid or unenforceable, then these GTC, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
19.2 In case of any misunderstandings and disputes the contracting parties make reasonable efforts to settle them amicably prior to appear in court.