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General Terms and Conditions (AVB)
General rules
1 Validity of the conditions
1.1
These contractual conditions of intarsys (Schweiz) AG apply to all deliveries and services of intarsys (Schweiz) AG as well as to all pre-contractual business contacts. They also apply when concluding further contracts in commercial transactions, even if this is not mentioned again. This does not apply if the contractual partners agree otherwise in writing. Other conditions do not become part of the contract, even if intarsys (Schweiz) AG does not expressly contradict them.
1.2
Offers from intarsys (Schweiz) AG are subject to change and non-binding, unless the offer is expressly designated as binding in writing. Offers from the client are binding for these three weeks. A contract is concluded through a written order confirmation from intarsys (Schweiz) AG or through the fact that intarsys (Schweiz) AG carries out the order.
2 Selection of products and specifications
2.1
The client is aware of the essential functional features of the software to be delivered by intarsys (Schweiz) AG. He has checked that the specification of the contractual items corresponds to his wishes and needs and specifies the requirements for the services. The client's specifications must be in writing. The implementation of the requirements must be agreed in writing.
2.2
To the extent that the description of the requirements for the deliveries and services of intarsys (Switzerland) AG cannot be carried out independently by the client, in particular as part of the creation of specifications for the creation or adaptation of software, intarsys (Schweiz) AG will support the client in this regard against separate remuneration . The jointly developed requirements description (requirements specification) will be checked and approved by the client within a contractually agreed period after completion and submission by intarsys (Switzerland) AG. The obligation to check includes the implementation of the client's requirements and the information provided by the client, but not the data processing implementation. If the client discovers defects, gaps or contradictions during the inspection, he will notify intarsys (Switzerland) AG of these in a comprehensible manner within a reasonable period of time. intarsys (Switzerland) AG will rework the requirements description. The approved requirements description forms the binding basis for further cooperation. Section 3 Paragraph 3 ff applies to changes.
2.3
Unless otherwise contractually agreed, the procedure in Section 2 Paragraph 2 also applies if intarsys (Switzerland) AG is commissioned to carry out a preliminary study on the feasibility of the client's requirements.
2.4
Representations in test programs, product and project descriptions, requirements descriptions or similar documents do not constitute guarantees. These require the express written confirmation of intarsys (Schweiz) AG.
2.5
To ensure functionality, the software supplied by intarsys (Schweiz) AG must be used on the operating system platforms specified in the user documentation.
3 Scope of services
3.1
The decisive factor for the scope, nature and quality of the deliveries and services is the written order confirmation from intarsys (Switzerland) AG or a written contract and, if commissioned by the client, the approved description of requirements (or specifications), otherwise the offer from intarsys (Switzerland). ) AG. Other information is only binding if intarsys (Switzerland) AG has confirmed it as binding in writing.
3.2
Intarsys (Switzerland) AG can produce minutes of discussions regarding discussions to clarify or change contractual circumstances, in particular the subject matter of the contract. The content of the protocols becomes binding on both parties if intarsys (Switzerland) AG provides them to the client and the client does not object in writing within one week with reasons. intarsys (Switzerland) AG will inform the client of this effect.
3.3
The client can request changes and additions in writing. intarsys (Switzerland) AG can refuse to carry out the change request in writing if the execution is unreasonable within the scope of its operational capabilities or if the changes or extensions cannot be carried out or if these would lead to a reduction in the agreed remuneration. Intarsys (Switzerland) AG can invoice the client for costs incurred by intarsys (Switzerland) AG for checking the change requests and which exceed 0,5 person days as well as downtime costs caused by the change request.
3.4
If the actual implementation of the changes has an impact on the contractual service structure (in particular remuneration, dates, subject matter of the service), the contracting parties will make a written adjustment to the contractual regulation. For this purpose, intarsys (Switzerland) AG will provide the client with an offer within a reasonable period of time for the additional costs caused by the change request and the necessary changes to the schedule. The remuneration is based on the currently valid price list of intarsys (Schweiz) AG. If the contracting parties do not agree on a contract adjustment within three weeks of this offer being made available, intarsys (Switzerland) AG will execute the contract without taking the requested change into account.
3.5
intarsys (Switzerland) AG will provide the services using technical tools that intarsys (Switzerland) AG considers necessary or appropriate and which are available to intarsys (Switzerland) AG. intarsys (Switzerland) AG can commission subcontractors to carry out the services.
4 Copyright and granting of rights
4.1
The software (program and manual) supplied by intarsys (Schweiz) AG is protected by copyright. All rights to the software and to software provided as part of maintenance as well as to other documents provided by intarsys (Schweiz) AG as part of the contract initiation and execution or as part of the training are exclusively owned by intarsys (Schweiz) AG in the relationship between the contracting parties. This also applies if the software was created through specifications or cooperation of the client. If the rights belong to third parties, intarsys (Schweiz) AG has corresponding exploitation rights.
4.2
After payment of the agreed remuneration, the client receives the non-exclusive authorizations that he needs to use the software in his company for his own purposes on an ongoing basis as described in the contract, the following regulations and the manuals. A license key is required to use the software. When the software is provided, the client receives a temporary license key. Immediately after full payment of the fee, he will receive a license key in accordance with the contractual agreements. If the client is in default of payment, intarsys (Switzerland) AG has the right to refuse to provide the final license key.
4.2.1
The client may load the programs onto the RAM and hard drives of the type and number of computers specified in the contract and use them on the type and number of workstations specified in the contract. The client may create the backup copies of the programs necessary for safe operation, which must be marked as such and, if possible, provided with the copyright notice of the original data carrier. The client may only reproduce the programs for these purposes. The manuals and other documents provided by intarsys (Schweiz) AG may only be copied for internal company purposes. Section 14 applies to the software and copies.
4.2.2
The decompiling of the programs to ensure the interoperability of the software with other programs is only permitted within the framework of the provisions of the Copyright Act and only if intarsys (Switzerland) AG does not provide the necessary information and documents within a reasonable period of time despite a written request from the client. intarsys (Switzerland) AG is entitled to demand appropriate compensation for this.
4.2.3
All other types of use of the software, in particular translation, editing, arrangement and other modifications, are prohibited unless the actions are necessary to maintain the intended use and eliminate errors and are carried out by intarsys (Switzerland) AG or the respective rights holder not offered after a written request from the client.
4.2.4
The use of the software beyond the contractually agreed scope is only permitted with the prior written consent of intarsys (Schweiz) AG.
4.2.5
Without the written consent of intarsys (Schweiz) AG, the client is not entitled to pass on the software or usage rights thereto to third parties for a fee or free of charge, to rent, lend, transfer or otherwise distribute the software to third parties in physical or intangible form. Data center operation using the software for third parties or by third parties for the client or other provision or use for third parties also requires the prior written consent of intarsys (Schweiz) AG. An expansion of the scope of use that requires approval also occurs in the event of a merger or other involvement of the client with a third party, even if there is a case of legal succession.
4.2.6
If the use of the software requires approval in accordance with these rules, the client is obliged to immediately inform intarsys (Schweiz) AG in writing. intarsys (Switzerland) AG can make the granting of consent dependent on the payment of a fee to be agreed for the extended scope of use.
4.2.7
Before involving third parties, the client provides intarsys (Switzerland) AG with a written declaration that it undertakes directly to intarsys (Switzerland) AG to comply with the rules set out in Section 4 and Section 14.
4.3
The client may only pass on the software as a whole to third parties and only with the written permission of intarsys (Schweiz) AG. The mere reduction of the scope of use (e.g. reduction of jobs or the balance sheet total) does not justify passing on the software with regard to the scope of use that is no longer used. intarsys (Switzerland) AG will grant permission to pass on if the client assures in writing before passing on that he will permanently stop using the software and will not retain a copy, and if the third party agrees in writing to intarsys (Switzerland) AG to comply with the contractual obligations Usage and distribution rules are obligatory. The client provides the third party with the original data carriers and manuals.
4.4
Unless otherwise agreed in writing in the contract, the client has no right to the release of the source programs and development documentation. The client receives the software consisting of the machine program and the user manual, which can also be included in the program. He will receive a user manual for the individual software and for software adaptations if this was contractually agreed in writing.
4.5
The client also receives non-exclusive, time-unlimited usage rights to other work results created for the client as part of a contract (e.g. preliminary study, conception and planning documents, drawings, etc.). The client is entitled to reproduce, translate and edit the work results for his own purposes. If he distributes, demonstrates, commercially exploits the work results or edits thereof or wants to report publicly on them, this requires the written consent of intarsys (Switzerland) AG. This also applies if he makes the work results available to third parties for the purpose of implementation.
4.6
Contractually, the contractual partners can make different usage agreements.
5 Participation of the client
5.1
The client participates in the provision of the service. He provides intarsys (Switzerland) AG with all information necessary for the execution of the contract in a timely manner. To the extent that it is useful for the fulfillment of the contract, the client supports intarsys (Schweiz) AG in the execution of the contract free of charge by providing timely and to the necessary extent, e.g. B. employees, work rooms, hardware, operating system and basic software, for the system from intarsys (Schweiz) AG provides compatible data and telecommunications equipment. The client ensures that current system program versions as well as network, database and other system or application-related software are available, if this is necessary for the provision of the services.
5.2
The client will test the software supplied by intarsys (Schweiz) AG in detail in connection with the respective applications and system environments in a test configuration that is separate from real operation and will only put the software into productive use once it has determined that it functions perfectly and is safe.
5.3
Before intarsys (Schweiz) AG intervenes in the IT system that is necessary to provide the service, the client carries out a data backup or otherwise ensures that the current data from databases held in machine-readable form can be reproduced with reasonable effort. intarsys (Switzerland) AG will inform the client in good time before such interventions.
5.4
intarsys (Switzerland) AG can provide services via remote maintenance. The client ensures the necessary technical requirements at his own expense and grants intarsys (Switzerland) AG access to his IT system after appropriate telephone notification.
5.5
If the client does not fulfill his obligation to cooperate, intarsys (Schweiz) AG is entitled to withhold its services. Other rights of intarsys (Schweiz) AG remain unaffected. If intarsys (Switzerland) AG nevertheless performs this, it will invoice its additional effort in accordance with the valid price list if the client does not cooperate despite requests from intarsys (Switzerland) AG. This also applies to the additional effort that intarsys (Schweiz) AG incurs as a result of work having to be repeated due to incorrect, incomplete, subsequently corrected information.
5.6
When concluding the contract, the contractual partners name a contact person or project manager (if necessary also their representative). The client's contact person (project manager) is the contact person at intarsys (Schweiz) AG, he ensures good cooperation, the fulfillment of the cooperation obligations and makes the decisions necessary for the order. The contractual partners will inform each other of the change in contact person in writing.
6 Performance time, delays
6.1
intarsys (Switzerland) AG provides services on weekdays Monday to Friday from 9.00:17.00 a.m. to XNUMX:XNUMX p.m. in its premises or, by arrangement, in the client's premises. In the latter case, the travel times and travel costs must be reimbursed separately by the client.
6.2
Information on the time of service and delivery is non-binding unless intarsys (Switzerland) AG has confirmed a delivery date as binding in writing. Self-delivery is always reserved; In relation to deliveries and services from third parties, intarsys (Switzerland) AG is only responsible for ensuring that the order is carried out properly and that the non-delivery is not due to reasons for which intarsys (Switzerland) AG is responsible. Partial deliveries are permitted provided that the parts delivered can be usefully used in isolation.
6.3
Compliance with the time of performance requires that the client fulfills his cooperation and other contractual obligations in a timely and complete manner. If these requirements are not met, the deadlines will be extended appropriately, but at least by the period of delay and an appropriate start-up time. This also applies if the client's requirements subsequently change.
6.4
Delivery and service deadlines are extended by the period in which intarsys (Switzerland) AG is due to circumstances for which it is not responsible (e.g. labor disputes, force majeure, loss of employees or technical equipment through no fault of intarsys (Switzerland) AG , non-delivery by suppliers) is prevented from providing the service and a reasonable start-up time after the hindrance.
6.5
intarsys (Switzerland) AG will only be in default if a reminder is issued. All reminders and deadlines from the client must be in writing to be effective. Grace periods must be reasonable.
6.6
If the client is responsible for project disruptions or delays, intarsys (Switzerland) AG will invoice any additional costs that may arise as a result.
7 Payment, prices, assumption of risk, offsetting and assignment
7.1
Payments are due upon receipt of the invoice and must be paid within 14 days without deductions. In the course of commercial transactions, intarsys (Switzerland) AG may charge interest on due dates of 5% pa and default interest of 8% pa above the respective base interest rate of the European Central Bank. Even if this is not expressly agreed, intarsys (Schweiz) AG is entitled to demand appropriate advance payments. intarsys (Switzerland) AG is entitled to demand advance payments of a maximum of 50% of the remuneration agreed for the software rental upon conclusion of the contract. Sales tax is added to all prices.
7.2
If no prices have been agreed for deliveries and services, the price list of intarsys (Schweiz) AG valid at the time of order confirmation applies. Accessories, data carriers, additional costs for services that are carried out at the request of the client outside of normal working hours or at the client's premises as well as additional costs (travel costs, travel time, expenses) must be reimbursed in accordance with the valid price list.
7.3
If no fixed price has been agreed for services, such services will be charged based on effort. Billing takes place in connection with its implementation or at the end of each month against proof of the effort and additional costs. All information provided by intarsys (Schweiz) AG about the expected time and costs of an order are pure estimates based on the requirements stated by the client and are non-binding unless a binding fixed price has been set.
7.4
intarsys (Switzerland) AG ships contractual items at the client's expense. Unless otherwise contractually agreed, the place of performance is the registered office of intarsys (Schweiz) AG. The risk of accidental loss passes to the client when the properly packaged goods are handed over to the transport person. Software produced by intarsys (Switzerland) AG that is damaged during transport will be replaced by intarsys (Switzerland) AG upon return of the damaged data media in return for compensation for administration expenses.
7.5
The client can only offset claims that are undisputed or legally established by intarsys (Schweiz) AG. This also applies to the client's rights of retention and refusal of performance, unless the client's counterclaim results from a culpable, gross breach of duty by intarsys (Schweiz) AG. The client can only assert a right of retention in the specific contractual relationship in which intarsys (Switzerland) AG has not provided its services.
8 Acceptance of delivery and service
8.1
If the contractual partners have concluded a contract for work or have contractually agreed to carry out an acceptance, intarsys (Schweiz) AG can request a written declaration of acceptance from the client as soon as the delivery or service has been provided correctly, completely and free of defects by intarsys (Schweiz) AG. The details of the acceptance procedure can be found in the respective contract. The declaration may only be refused if the delivery or service has significant defects or defects that cannot be repaired. In this case, the acceptance will be canceled and continued by the client after the error has been eliminated by intarsys (Schweiz) AG. Errors that do not prevent acceptance will be eliminated by intarsys (Schweiz) AG as part of its warranty obligation.
8.2
The declaration is deemed to have been made if the client uses the contractual items without complaint for more than three weeks since delivery or expresses his approval in another way, e.g. B. by remaining silent in response to a request for acceptance or by paying the remuneration.
8.3
Paragraphs 1 and 2 also apply to partial services. However, the approval here does not extend to those characteristics of the delivery and service that can only be checked in connection with the later deliveries and services.
9 Obligation to investigate and give notice of complaints
The client is obliged to have all services provided by intarsys (Schweiz) AG immediately inspected by a qualified employee in accordance with commercial law regulations and to report defects in writing with a precise description. The defect must be described in such a way that it can be reproduced. This obligation depends on the client's ability to identify and name defects. An error message must contain information about the type of defect, the module in which the defect occurred and the work that was being carried out on the program when the defect occurred.
10 Material and legal defects
10.1
intarsys (Switzerland) AG guarantees that the services it provides comply with the quality agreement made in the respective contract, are suitable for the contractually stipulated or usual use and are of usual quality. intarsys (Switzerland) AG guarantees that the services are free of third-party rights that hinder or exclude use by the client in accordance with the rules of these conditions and the respective contract.
10.2
Errors within the meaning of the warranty are exclusively reproducible errors, the cause of which lies in quality defects of the delivery item as well as deviations in the functionality of the delivery item in relation to the quality agreement. The prerequisite for the existence of claims for defects is that the defect was already present at the time of transfer of risk and that the suitability for the contractually stipulated or usual use is not only insignificantly reduced. A functional impairment that results from hardware defects, environmental conditions, incorrect operation, etc. is not an error. intarsys (Schweiz) AG does not guarantee that overall products or concepts designed by the client using the software supplied will fulfill the tasks planned by the client, unless this has been previously agreed in writing.
10.3
intarsys (Switzerland) AG initially provides a guarantee through free supplementary performance in the event of proven defects in the service provided, including in the event of culpable disruptions in the performance of services, to the extent that this is technically possible and economically reasonable.
10.4
Subsequent fulfillment with regard to defects in software services is carried out at intarsys (Switzerland) AG's discretion by providing a new program or documentation version that does not contain the defect or by intarsys (Switzerland) AG pointing out ways to avoid the effects of the error. Since complex software of a comparable type cannot be produced completely error-free, it is not always possible to completely eliminate errors through subsequent improvements. Supplementary performance with regard to legal defects can also be carried out by intarsys (Switzerland) AG defending or satisfying the claims of third parties or instead exchanging the affected service for an equivalent service that meets the contractual requirements. A different program version provided as part of subsequent performance that does not contain the defect must be accepted by the client even if this results in reasonable adjustment effort for the client.
10.5
If third parties assert intellectual property rights (in particular copyright/patent rights) against the client, the client will immediately inform intarsys (Switzerland) AG in writing. The client authorizes intarsys (Switzerland) AG to conduct the dispute with the third party alone and supports intarsys (Switzerland) AG in this to the necessary extent. If intarsys (Switzerland) AG makes use of this authorization, the client may not recognize the claims of third parties on its own initiative. intarsys (Switzerland) AG defends the claims of third parties at its own expense and releases the client from all costs associated with defending against claims, provided that these are not based on the client's breach of duty (e.g. use of the programs contrary to the agreement).
10.6
For third-party delivery items, in particular software from a pre-supplier, the time required for subsequent performance will depend on the supplier's organization. If the client cannot reasonably be expected to wait for the next error-corrected software version, intarsys (Switzerland) AG will attempt to develop a workaround.
10.7
If subsequent performance ultimately fails after several attempts - at least two attempts regarding the same defect, unless the complexity of the software justifies further attempts at subsequent performance - or if intarsys (Switzerland) AG refuses subsequent performance, the client has the right to appropriately reduce the remuneration for the contract or to cancel the contract. There is no right of withdrawal in the event of insignificant defects. Section 11 applies to compensation for damages or reimbursement of wasted expenses. In the case of service and maintenance contracts, the client has an extraordinary right of termination instead of withdrawal. If the client wishes to terminate the contractual relationship (e.g. withdrawal, compensation instead of performance), the requirements in Section 12 must be adhered to.
10.8
The client shall, within reason, take all necessary measures to identify, limit and document the defects. In the event of a warranty claim, he provides intarsys (Switzerland) AG with all available information and supports the elimination of defects in accordance with Section 5.
10.9
The prerequisite for the warranty is always a notification of defects in accordance with Section 9 and proof from the client that the defect is based on the deliveries and services of intarsys (Schweiz) AG. If, as part of intarsys (Switzerland) AG's subsequent performance, it turns out that a complaint about defects was unfounded, intarsys (Switzerland) AG is entitled to invoice the client for the resulting expenses.
10.10
The warranty further requires that the client has not changed the software or used the software contrary to the contractual requirements, in particular Section 4, unless the client proves that the defect is independent of this. If intarsys (Schweiz) AG incurs additional effort in troubleshooting and troubleshooting due to changes to the software not made by intarsys (Schweiz) AG, the client must bear this. This also applies if it turns out that the malfunction or error was not caused by services provided by intarsys (Schweiz) AG.
10.11
Claims due to material and legal defects expire in one year. The period begins with delivery, or in the case of a work contract, with acceptance. This deadline also applies to claims for withdrawal and reduction in accordance with Section 10.7. In the event of fraudulent intent and the existence of a legal defect, due to which a third party can demand the return of the delivered software or other delivered item based on a real right, the statutory limitation period applies. The statutory regulations also apply to the beginning of the warranty period.
11 liability
11.1
Intarsys (Switzerland) AG is only responsible for intent and negligence, unless it assumes a guarantee or a procurement risk and unless otherwise expressly agreed. The assumption of a guarantee or the assumption of the procurement risk must be expressly agreed in writing between the contractual partners.
11.2
Unless otherwise contractually agreed, intarsys (Switzerland) AG is liable for damages or reimbursement of wasted expenses, regardless of the legal basis, even in the case of non-contractual or pre-contractual liability, only in accordance with the following rules:
(a) In the event of intent, claims under the Product Liability Act, the assumption of a guarantee or injury to life, body or health, intarsys (Switzerland) AG is liable in accordance with the statutory provisions.
(B) In the event of gross negligence, fraud or assumption of procurement risk, intarsys (Switzerland) AG's liability is limited to compensation for typical foreseeable damage.
(C) In the event of simple negligence in the event of delay, impossibility, slightly negligent violation of a cardinal obligation or an obligation so essential that the achievement of the purpose of the contract is jeopardized, intarsys (Switzerland) AG is liable to compensate for the damage that was typical and foreseeable, limited to that arising from the affected remuneration owed to the contract for all damages resulting from this contract and to be compensated for in accordance with this regulation. If the contract in question is a continuing obligation (e.g. care contract), liability for all damages within a contract year is limited to the remuneration agreed for this contract year. If the client demands compensation and at the same time makes use of his right of withdrawal, liability for damages is limited to the remuneration owed under the contract in question.
11.3
A claim for damages is excluded if intarsys (Switzerland) AG cannot fulfill its obligations because a supplier does not deliver properly. intarsys (Switzerland) AG is only liable if it does not properly carry out an order to a third party or if intarsys (Switzerland) AG is otherwise at fault.
11.4
If insurance from intarsys (Switzerland) AG covers the damage, intarsys (Switzerland) AG will make the insurance payment available to the client in full, regardless of the limitation of liability, less any amount already paid by intarsys (Switzerland) AG.
11.5
intarsys (Schweiz) AG is only liable for the retrieval of data if the client has ensured that this data can be reproduced from databases held in machine-readable form with reasonable effort. This limitation of liability does not apply in cases of intent or gross negligence.
11.6
Claims for damages or reimbursement of wasted expenses in the event of contractual or non-contractual liability expire in one year, provided that the claims are not based on injury to life, body, health or freedom and are not based on intent or gross negligence or fraud. The period begins at the end of the year in which the claim arose and the creditor became aware of the facts giving rise to the claim and the identity of the debtor or could have become aware of them without gross negligence.
11.7
The objection of contributory negligence remains unaffected.
12 Termination of the exchange of services
12.1
Before any intended termination of the further exchange of services resulting from a breach of duty by intarsys (Switzerland) AG (through withdrawal, termination for good cause, demand for damages instead of performance), the client must specifically name the breach of duty intarsys (Switzerland) AG and intarsys (Switzerland) AG to request that the disruption be remedied within a reasonable period of time, unless setting a deadline is unnecessary in individual cases under the law. In addition, the client must threaten intarsys (Switzerland) AG that he will no longer accept any further services from intarsys (Switzerland) AG after the deadline has expired without success and will demand compensation instead of performance and/or withdrawal from the contract.
12.2
If intarsys (Switzerland) AG responds to the client's request for elimination in order to eliminate the disruption, intarsys (Switzerland) AG will, in order to avoid legal uncertainties, request the client to finally declare within one week of receiving the request whether he sticks to the existing contract. If the client does not respond, his right to terminate the contract with regard to the complained matter is excluded at this time. intarsys (Switzerland) AG will inform the client of this legal consequence in his request. The client is not entitled to terminate the contract if intarsys (Switzerland) AG has provided the services owed.
12.3
The client's right to fulfill the contract remains valid until the client demands compensation instead of performance and/or declares withdrawal.
12.4
Withdrawal from the contract due to non-performance of a due service requires that intarsys (Schweiz) AG is responsible for the non-performance or that there is a case of impossibility. Section 10 Paragraph 7 remains unaffected.
12.5
All declarations in this context must be in writing.
12.6
If the client exercises his right to terminate the contract and shares responsibility for the circumstance that entitles him to terminate the contract, any resulting claims for damages from intarsys (Switzerland) AG remain unaffected.
13 Reservation of revocation
13.1
intarsys (Switzerland) AG can revoke the usage rights granted to the client for important reasons. An important reason exists in particular if the client does not comply with the usage restrictions in Section 4 or violates the confidentiality obligation in Section 14 and does not immediately stop this behavior even after a written warning with a threat of revocation.
13.2
If the authorization of use is revoked, the client must return the original software and existing copies and delete stored programs. He must assure intarsys (Schweiz) AG in writing that the data will be completely released and deleted. Further claims remain unaffected.
14 Confidentiality, custody, data protection
14.1
The contractual partners undertake to treat all information and documents that they receive or become aware of from the other contractual partner during the execution of the contract, which contain business or trade secrets or are designated as confidential, even after the end of the contract. This applies in particular to the software supplied by intarsys (Schweiz) AG and copies thereof made by the client. The contractual partners store and secure these items in such a way that access by third parties is excluded.
14.2
Employees of the contractual partners and third parties involved in the execution of the contract who have official access to the items mentioned in paragraph 1 must be informed in writing about the confidentiality and security obligations. This also applies to the client's employees with regard to the legal relationships with the software and the client's powers in accordance with Section 4.
14.3
intarsys (Switzerland) AG observes data protection regulations. To the extent that intarsys (Switzerland) AG processes personal data when executing this contract, intarsys (Switzerland) AG will only process or use the personal data within the scope of this contract or other written instructions from the client and in accordance with data protection regulations. intarsys (Switzerland) AG will impose the same obligations on appointed subcontractors.
14.4
intarsys (Switzerland) AG commits its employees entrusted with the processing of personal data to data secrecy in writing and provides proof of this to the client upon request. Subcontractors are obliged accordingly.
15 Written form, place of jurisdiction, choice of law
If a competent authority decides that one or more provisions of these General Terms and Conditions are void or ineffective, the binding nature of the remaining provisions remains unaffected. In this case, intarsys (Switzerland) AG replaces the relevant provisions with economically adequate, legal provisions.
15.1
All changes and additions to the contract must be made in writing to be effective. The same applies to the cancellation of the written form requirement.
15.2
Place of jurisdiction for all disputes in connection with this contractual relationship is Prattel BL. intarsys (Switzerland) AG is also entitled to file a lawsuit with the court that has general jurisdiction for the client's registered office.
15.3
This contract and all addenda are subject to Swiss substantive law, excluding the “Vienna Sales Convention” (United Nations Convention on Contracts for the International Sale of Goods of April 11.4.1980, XNUMX).
B Supplementary rules for services
16 Provision of services by intarsys (Switzerland) AG
16.1
Insofar as services are provided to the client, intarsys (Schweiz) AG s alone is authorized to issue instructions to its employees. The employees are not integrated into the client's business. The client can only give instructions to the project manager of intarsys (Schweiz) AG, not directly to the individual employees.
16.2
intarsys (Switzerland) AG reserves the right to replace an employee with another employee with the necessary qualifications at any time. intarsys (Switzerland) AG can also use freelancers and employees of other companies to fulfill the order. Intarsys (Switzerland) AG will inform the client of any change in employees, provided the employee is in direct contact with the client.
16.3
If intarsys (Switzerland) AG cannot provide services for reasons that lie within the sphere of the client, intarsys (Switzerland) AG is still entitled to the remuneration. intarsys (Switzerland) AG will use the free volume of services elsewhere if possible. This requires that the client informs intarsys (Schweiz) AG of the impediment to performance in writing as early as possible. A deadline of at least ten working days must be observed for this.
C Supplementary rules for software maintenance services
17 software maintenance services
17.1
intarsys (Switzerland) AG provides software maintenance services from the delivery of the software, provided that a software maintenance contract has been concluded between the contractual partners. The software product to be maintained and the services to be provided are determined in the software maintenance contract.
17.2
The maintenance services from intarsys (Schweiz) AG are limited to the last two releases of the software. If the client has decided not to install these releases and therefore does not use either of the two current releases, intarsys (Switzerland) AG only owes the provision of the current releases. intarsys (Switzerland) AG only owes further services if the reported error has not been fixed in the current release status or the client installs and uses a current release status. The client is therefore obliged to install all program versions delivered as part of the maintenance within a reasonable period of time, unless this is associated with an unreasonable disadvantage for him. Such a disadvantage occurs, for example, if the use of the new release of the software results in the client having to upgrade its hardware and software environment in a way that does not correspond to the state of the art. If this is unreasonable, the client can terminate the maintenance contract for good cause. In this case, intarsys (Switzerland) AG can offer the maintenance services for a fee based on effort.
17.3
The maintenance services do not extend to individual software, software that is individually adapted for the client, configured or modified by the client or third parties, unless such services are ordered separately by the client for appropriate remuneration. Intarsys (Switzerland) AG undertakes software modifications and software extensions as well as the transfer of such modifications, extensions, configurations or parameterizations to further developed versions of the software for a fee based on effort and after a separate order from the client.
18 Special care conditions
18.1
The maintenance services may result in deviations from the specifications contained in manuals, brochures and other illustrations.
18.2
Maintenance services can only be requested by the client from the system manager or his representative. Only employees of the client who are sufficiently competent and have been intensively trained in the handling of the software in question can be appointed as the system manager and his representative.
18.3
The client shall, within reason, take all necessary measures to identify, limit and document software malfunctions. This includes the preparation of a malfunction report on the form provided by intarsys (Schweiz) AG with a precise description of the malfunction and its effects, stating the data processing environment affected and the date of installation of the software. The client also provides intarsys (Switzerland) AG with system logs and memory dumps, affected input and output data, interim and test results and other documents suitable for illustrating the fault.
18.4
The client documents changes to the configuration and environment of the software and immediately informs intarsys (Schweiz) AG in writing. This also applies to changing the installation location of the software. If these changes cause difficulties for intarsys (Switzerland) AG, intarsys (Switzerland) AG is entitled to invoice the additional effort incurred.
18.5
If technical changes are necessary for the client as a result of maintenance services, he will bear the cost of adapting his hardware or software environment, unless this is unreasonable for him. This is the case if the technical adaptation does not correspond to the state of the art. In this case, the client is entitled to terminate the maintenance contract for good cause.
18.6
The client is aware that intarsys (Switzerland) AG must take into account possible restrictions on maintenance services by the upstream supplier in the case of third-party software. intarsys (Switzerland) AG will keep the client informed about any, including future, restrictions and, if necessary, provide a new offer.
19 Compensation for software maintenance services
19.1
intarsys (Switzerland) AG receives the contractually agreed annual remuneration plus VAT for providing the care services. The remuneration is calculated from a percentage of the software transfer fee to be paid by the client for the software to be maintained, as agreed in the maintenance contract. The care allowance is to be paid annually in advance. Otherwise, Section 7 applies.
19.2
If the maintenance contract does not begin with the initial transfer of the software to be maintained, intarsys (Schweiz) AG is entitled to charge an initial fee for the period between the initial transfer of the software and the start of the maintenance contract, which is based on the proportion of further development costs between the software delivery and the start of the maintenance contract. This does not apply if intarsys (Switzerland) AG does not offer the client a software maintenance contract at the time of transfer.
19.3
If the software to be maintained is expanded either by purchasing additional licenses or modules or through further additions, or if the software is used to a different extent, the maintenance fee increases from the time of the change in accordance with the increased software rental price. The care fee to be paid for this is agreed in an addendum to the respective care contract.
19.4
If employees of intarsys (Schweiz) AG work on-site at the client's site as part of the care services, this work is not covered by the care remuneration. All resulting costs will be invoiced to the customer in accordance with the current price list from intarsys (Switzerland) AG.
19.5
intarsys (Switzerland) AG can change the remuneration by means of written notice with a notice period of three months, but at the earliest twelve months after the conclusion of the maintenance contract or the last increase. The increase may not exceed 5% (based on the last amount paid). For each increase, the client has a special right of termination to be exercised within four weeks of receipt of the increase notification, which entitles the client to set the end of the contract at a time of his choosing between the day on which the increase is to take effect and the expiration of six months thereafter. If he makes use of this, the original remuneration remains until the selected termination date is reached.
19.6
If it turns out that a maintenance service was ordered by the client, which is based on improper treatment or interventions by the client or other circumstances for which intarsys (Schweiz) AG is not responsible or which cannot be attributed to the software in question (e.g. hardware errors , network errors, errors in third-party software, incorrect data delivery from third-party systems) or if the client violates his obligations to cooperate, intarsys (Switzerland) AG will invoice the services provided separately in accordance with its currently valid price list.
20 Contract duration and termination of software maintenance contracts
20.1
The care contract can be terminated with six months' notice to the end of a contract year, and for the first time to the end of the third contract year, unless otherwise agreed.
20.2
Termination for important reasons remains reserved. An important reason exists in particular if the other contractual partner violates an essential obligation under this contract and does not remedy this violation within a reasonable period of time, even after a written request. An important reason for termination by intarsys (Schweiz) AG also exists if the client defaults on payment or if insolvency proceedings are filed against the client, opened or rejected due to lack of assets, or if legal settlement proceedings are initiated.
20.3
Any termination must be in writing to be effective. Termination must be made by registered mail.