Terms and Conditions – Belsoft Collaboration AG (GTC)
1) Applicability
These general terms and conditions (hereinafter the “GTC”) shall be applicable to and build an integral part of all existing legal relationships and in particular the contracts between Belsoft Collaboration AG (hereinafter „Belsoft“) and its customers.
In the event of discrepancies between the GTC and individual agreements (such as agreements on service description, managed services framework contracts plus annexes, services framework agreements plus annexes, software and license contracts, agreements for the provision of hardware or software, support and maintenance agreements, etc.; hereinafter “IA”), such IA shall prevail over the GTC.
By accepting an offer from Belsoft, the customer confirms and accepts that the contract shall be governed by these GTC and that any general terms and conditions and/or other contractual documents issued or provided by the customer are explicitly waived and excluded.
If Belsoft has performed services prior to the conclusion of the relevant IA, the terms and conditions of the IA shall be applied with retroactive effect to the date on which such services were rendered. Likewise, if Belsoft has performed services prior to the acceptance of these GTC, the latter shall be applied upon acceptance with retroactive effect to the date on which such services were performed.
2) Services of Belsoft
The details relating to the services and products as well as their availability are specified in the respective IA.
If hardware or software produced or distributed by a third party (hereinafter “third-party products”) shall be provided under a contract (as sole purpose of the contract or among other services), Belsoft may at its own discretion decide to purchase the third-party products on its own behalf and for its own account and subsequently sell the products to the customer (hereinafter “resale of third-party products”) or order the third-party products from the producer or the distributor on behalf and for the account of the customer (hereinafter “mediation of third-party products”). By accepting these GTC, the customer grants Belsoft the necessary power of attorney in this context.
If subordinated services from third parties are required in addition to the service to be performed by Belsoft as agreed upon in the IA in order to achieve the result required by the customer (e.g. the installation of an internet connection by a Telecom provider, etc.; hereinafter referred to as “third-party services”), the customer authorizes Belsoft to order the necessary services directly from the respective third-party provider on behalf and for the account of the customer.
3) Acceptance of Orders
Offers submitted by Belsoft are valid for 10 days, unless otherwise indicated. In the case of delayed acceptance, Belsoft may at its own discretion enter into the agreement. In any case, Belsoft shall confirm the details relating to delivery and price in writing.
4) Prices
Prices are laid down in the respective IA, in particular in the written order confirmations issued by Belsoft. Other quotation of prices, e.g. prices indicated in brochures, price lists or other documents, shall not be binding.
Changes to tax rates or other relevant charges (in particular the value added tax, hereinafter “VAT”) shall entitle Belsoft to adapt its prices without prior notice. Unless otherwise indicated, all prices are to be understood excluding VAT.
The customer shall bear all costs and expenses related to packaging, insurance and transportation of the products to the customer.
Unless specifically agreed otherwise, the travel time of Belsoft’s representatives and employees or other ancillary staff or substitutes is considered as working time. Furthermore, documented expenses, such as for accommodation travel expenses shall be charged to the costumer at cost. A surcharge of 50% shall apply for services performed between 8 p.m. and 8 a.m or on Saturdays. The surcharge for services performed on Sundays and public holidays shall amount to 100%.
Belsoft shall bear the currency exchange rate risk for any sale of third-party products which Belsoft has purchased in a foreign currency, provided, however, that the purchase price paid by Belsoft does not deviate by more than 3% from the price originally offered by Belsoft to the customer. If the exchange rate variation causes a a deviation of more than 3% from the price originally offered by Belsoft to the customer, the customer shall fully bear the exchange risk. In such case, Belsoft is entitled to adjust the price accordingly in the final invoice. Moreover, in case of mediation of third-party products, the customer acknowledges that any commissions, discounts or other price reductions granted to Belsoft by the producer or the distributor pursuant to a framework agreement (e.g. partnership agreement) shall not be passed on to the customer. By accepting these GTC, the customer explicitly agrees hereto.
For started months within the framework of long-term services (e.g. rent, maintenance), the price is 1/30 of the monthly costs per day (pro rata temporis).
The customer shall bear the cost of third-party services, which will generally be invoiced to the customer directly by the third-party provider or, if appicable, by Belsoft.
5) Terms of Payment
The customer agrees to pay the invoiced amount at latest by the due date indicated on the invoice form. If no due date is indicated, the customer shall pay the invoiced amount within 10 days from the date of invoice. Within 10 days from the date of invoice, the customer can object to the invoice in writing stating the reasons for the objection. Thereafter, the invoice is deemed to be accepted without any reservations. If the customer fails to pay within the payment period, he falls in default upon expiration of such period without any further reminder. Belsoft is entitled to assign all monetary claims and other claims against the customer to third parties at any time.
If the customer falls in default, Belsoft is entitled to suspend all services immediately and without further notice. The customer shall grant Belsoft access to his premises in order to uninstall and pick up the facilities that have not yet become his property and thus still belong to Belsoft or to a third party (producer, distributor, third-party provider). Payments due pursuant to an IA remain due even during the suspension of services by Belsoft.
Belsoft is entitled to demand an advance payment from the customer (invoicing and payment before rendering the services) or a security deposit. If the customer does not provide the advance payment or security deposit as requested by the due date, Belsoft is entitled to terminate the contractual relationship without notice and compensation. The same rule applies in the event of the opening of insolvency proceedings (e.g. definitive debt restructuring moratorium or opening of bankruptcy) against the customer.
The customer is not entitled to offset with counterclaims against Belsoft without prior consent of Belsoft.
6) Retention of Title
Ownership of the purchased goods is transferred to the customer only upon full payment of the purchase price. Belsoft and, in the event of mediation of third-party products, the respective producer, distributor or Belsoft on their behalf are entitled to make the necessary entries into the respective register of retention of title. By accepting these GTC, the customer agrees to the entry into the register of retention of title in all material respects. Moreover, the customer shall, at Belsoft’s first request, confirm in writing its approval to such entry in all material respects (art. 4 para. 4 of the Regulation of the Swiss Federal Court concerning the entries of retention of title). The customer shall inform Belsoft at any time about its latest name and address details as well as any changes thereof immediately in writing or by fax.
7) Inspection, Notification of Defects and Acceptance
The customer shall immediately upon delivery or collection inspect the products and services provided by Belsoft with regard to quality and condition and immediately notify Belsoft of any defects. Any defects that were not detected in spite of a careful examination shall be notified immediately upon discovery. In case of mediation of third-party products, the customer must notify the defect to both Belsoft and the respective producer or distributor. If the customer fails to carry out the inspection or does not make the notification of the defects in due time, such products or services are deemed to be accepted and any warranty claims forfeited.
If, in case of services or works provided by Belsoft, the customer and Belsoft agreed upon a partial or total acceptance testing in the relevant IA, such testing shall be carried out pursuant to the terms laid down in the IA, , however, in no case later than 20 days upon invitation to carry out the testing. The notification of defects must be made on the day of acceptance test at the latest. If no defects have been notified by then, the service provided and the service provided, which is not affected by a defect, is deemed to be accepted. The same applies in case of a productive use of the service. Any defects that were could not have been detected during testing shall be notified immediately upon detection. If the customer fails to notify the defects immediately upon detection or fails to cooperate in the testing, the respective service is deemed to be accepted and any warranty claim shall be deemed forfeited. If only minor defects are notified in the course of partial or total acceptance testing, the customer is entitled to withhold no more than 10% of the amount due related to the respective testing until the defects have been rectified (subject to the terms of payment). The customer further acknowledges that the services provided by Belsoft are generally suspended between the invitation to acceptance testing of partial services and the execution of such acceptance testing by the customer and that a delay of such acceptance testing attributable to the customer may have effects on the agreed deadline, for which the customer is liable.
8) Warranty
In the event of defect, Belsoft can either rectify the defect or provide the customer with an appropriate replacement. The customer is only entitled to action for rescission of the contract or to reduce the purchase price in case of repeated failure to rectify the defect. However, Belsoft is not obliged to rectify defects. An agreed guarantee, if any, does not apply to consumable and operating materials.
No claim of warranty applies if the customer interferes with the systems and products – i.e. configurations – without the prior consent of Belsoft nor in the event of defects due to inadequate or insufficient storage, installation, use or maintenance of the products by the customer or due to other reasons that cannot be ascribed to Belsoft.
Warranty claims against Belsoft become time-barred within three months from delivery or performance or, in case of an agreed acceptance testing, from the day of the partial or full testing.
In case of third-party products, warranty claims against Belsoft are excluded. Such warranty claims must be submitted to the respective producer or distributor and are subject to the warranty provisions of such producer or distributor. Upon request, Belsoft provides the customer with the relevant warranty provisions prior to acceptance of these GTC or of an IA. However, the customer shall inform Belsoft if it asserts such warranty claims. In case of a resale of third-party products by Belsoft, Belsoft undertakes to transfer its warranty claims against the producer or distributor to the customer. Any expenses for repairs carried out by Belsoft under a third-party products’ warranty, such as the replacement of products, their packaging and transportation as well as any services for reinstallations/configurations, shall be invoiced to the customer.
9) Data Protection, Data Secrecy and other Legal Provisions
Belsoft undertakes to process customer data with due care and to comply with applicable data protection provisions. Nonetheless, Belsoft is entitled to internally process and use customer data such as names, addresses, types and quantities of purchased products and services, serial numbers in connection with the legal relationship etc. as well as data required for the acquisition of hardware, software or licenses and to pass on all of the aforementioned data to business partners of Belsoft for the same purpose.
Belsoft is explicitly entitled to use the customer as a reference for prospects. The reference is to be limited to general information. The disclosure of any further information requires the customer’s approval.
The customer is responsible for its compliance with data protection provisions in connection with the operation of the systems managed or installed by Belsoft.
The customer shall treat any information it receives from Belsoft, which is marked as confidential, secret or with a similar term or which is of such nature that it could be considered confidential, with the utmost confidentiality. The customer shall particularly keep codes, login names, passwords and the like confidential and shall be liable for any damage caused resulting from a breach this provision.
10) Export Provisions
The customer hereby acknowledges that certain products sold to him may be subject to export tax laws and other provisions of the United States, the European Union or other countries. The customer assures to fully comply with such laws and provisions.
11) Other Legal Provisions
The customer is responsible for complying with all legal provisions relating to the operation of the systems managed or installed by Belsoft. This applies in particular to the operational and technical requirements and the regulations of the building inspectorate as well as the safety measures with regard to the proper functioning of the systems.
12) Liability
Belsoft’s liability shall be limited to the liability for direct damages, provided that the customer is able to prove that Belsoft caused such direct damage with intention or gross negligence. In case of third-party products, the liability of Belsoft is limited to intention. In the event of an authorized delegation of a service, Belsoft’s liability is limited to due care in the selection and instruction of the substitutes. Belsoft’s liability for its ancillary staff is excluded to the extent permitted by law.
Belsoft shall in no event be liable for indirect or consequential damage, including loss of production, loss of turnover, loss of profit as well as loss or damage of records or data of the customer or third parties. This exclusion of liability also applies if such damages were foreseeable or if the possibility of such damage was pointed out to Belsoft or the customer. Moreover, Belsoft is not liable for any damages resulting from the non-performance of contractual duties of the customer (in particular the obligation to cooperate faultlessly and timely) as well as from external services not provided by Belsoft, i.e. services provided by the customer, third-party services and services provided by other providers in a contractual relationship with the customer.
In any event, Belsoft’s liability in connection with the harmful event shall be limited to the price of the purchased products, works or services.
13) Property Rights
The customer warrants that any licenses or data it provides do not infringe the license or property rights of third parties. In particular, the customer is responsible for the correct licensing of the software that is provided; Belsoft has no obligation to check in this respect.
Third-party claims in this respect shall in general be defended by the customer at its own cost and risk. If third parties lodge claims against Belsoft, the customer shall in any event hold Belsoft harmless and advance all expenses (e.g. court fees and lawyer fees). Moreover, at the request of Belsoft, the customer shall conduct such lawsuit himself and bear the costs thereof or take other measures in order to settle such legal dispute.
The customer acknowledges that he generally has to agree to the license conditions of third parties (producers or distributors) when purchasing software (third-party products or customized software) in order to ensure the correct use of such software.
14) Modifications of IA or the GTC
Any changes to an IA must be in writing. An exception can be made in the event of modifications or additions to the order by the customer, which can also be validly agreed upon if (i) Belsoft confirms the respective modifications or additions in writing and the customer does not revoke such modifications or additions within 10 days upon receipt or if (ii) Belsoft accepts the modification and the customer has paid for the relevant service.
15) Other Agreements
The customer is not entitled to transfer the IA nor any rights and obligations arising therefrom to third parties without Belsoft’s prior written consent.
16) Severability
If one or more provisions of the IA or the GTC are hold to be invalid, the respective provisions shall be replaced or complemented by a substitute provision that reflects the economic intentions of the parties. This does not affect the validity of the other provisions.
17) Place of Jurisdiction and Applicable Law
All legal relationships between the customer and Belsoft shall be governed exclusively by Swiss law, under the exclusion of the Vienna Sale of Goods Convention.
The exclusive place of jurisdiction for any disputes arising from or in connection with the legal relationships between the customer and Belsoft shall be Zurich, unless Swiss federal law provides for diverging mandatory places of jurisdiction. Belsoft shall however be entitled to assert its rights at the customer’s domicile or, given the absence of an agreement on jurisdiction, before any other competent authority.
April 2015