ITpoint Systems AG, Riedstrasse 1, CH-6343 Rotkreuz
((hereinafter “ITpoint”)
1. General
These “General Terms and Conditions of Business”, hereinafter referred to as “GTC”, govern the rights and obligations in ITpoint‘s relationship with its Customers. They apply to all business relationships between ITpoint and its Customers, in particular to the delivery of products, the provision of services, project management and consulting, unless otherwise agreed in writing. All our information documents, price lists, offers, project plans, verbal and written sales contracts, project contracts, concepts, deliveries and services are unconditionally, fully and exclusively subject to these General Terms and Conditions. For the maintenance of hardware and software, the supplementary provisions in the hardware and software maintenance agreements shall apply.
The content of the order confirmation to the Customer shall be deemed accepted without immediate notification of any complaints.
If not defined in more detail, products are understood as follows: hardware, software, concepts, projects, consulting and other services.
Third-party software (software that is not developed by ITpoint itself) is only conveyed by ITpoint. The Customer shall conclude the corresponding contract for the acquisition directly with the corresponding software supplier. The Customer confirms to have agreed to the corresponding contractual provisions of the supplier.
The Customer’s terms and conditions shall only apply if and to the extent that they have been expressly accepted by ITpoint in writing and do not conflict with ITpoint‘s GTC.
All subsidiary agreements, amendments, supplements and legally relevant declarations must be made in writing in order to be valid.
Should individual provisions be or become invalid or ineffective, the validity and effectiveness of the remaining provisions shall remain unaffected. In such a case, the invalid provision shall be reinterpreted or supplemented in such a way that the intended purpose of the provision is achieved as far as possible.
ITpoint can change the GTC’s at any time. Changes will be communicated to the Customer by circular or other suitable means and will come into force within one month without written objection by the Customer.
2. Information documents / price lists / offers
The information documents (catalogues, product sheets, newsletters), price lists and offers, in particular the illustrations and information contained therein, serve as a more detailed guide and are always subject to change without notice and are not binding. Offers specially prepared for a Customer are excepted from this.
3. Prices
Unless otherwise stated, prices are in Swiss francs, duty paid, in standard packaging ex ITpoint warehouse Switzerland plus transport, insurance and SWICO. Details regarding VAT can be found on the price lists as well as on order confirmations and invoices. In case of doubt, the indicated prices are exclusive of VAT. Prices are subject to change at any time until the conclusion of the contract. Support services are not included in the product price and will be charged to the customer separately according to the rates in the respective price list or according to a special agreement.
Within the scope of the provision of services, both flat-rate and direct services are provided. Lump-sum services are all services which ITpoint provides for the Customer during the term of the contract without any additional costs exceeding the lump-sum. Regular services are all those services which are invoiced at ITpoint‘s current rates on a time and material basis.
In the event of insufficient use of the available software and/or hardware documentation by the Customer, the service to be provided by ITpoint within the framework of the lump-sum arrangement shall be limited to providing information as to where the Customer can find factual and problem-related information in the documentation available to it.
The contractually agreed prices for the delivery of software for use shall only include the fee for use within the scope of ITpoint‘s separate right of use provisions. Not included are services provided by ITpoint in connection with the delivery, installation and commissioning of the Software. Unless otherwise agreed, such services shall be invoiced separately.
The fees to be paid for software maintenance, hardware maintenance and hardware backup shall be based on the applicable rates for the billing of such services. Unless otherwise noted, the rates set forth in ITpoint‘s then-current list of prices, fees and charges shall apply.
4. Payments
All payments shall be made to ITpoint‘s place of business within 10 days net or in accordance with the order confirmation or invoice. Payments shall be made without deduction of discounts, expenses, taxes, levies, fees, customs duties or the like. The absence of insignificant parts from the order or warranty claims against ITpoint shall not entitle the Customer to postpone due payments. If a Customer fails to meet his payment obligation despite a reminder without reason, ITpoint shall be entitled to charge interest on arrears from the due date of 10%. The Customer is obliged to inform ITpoint if liquidity bottlenecks are foreseeable. Advance payment or payment in arrears can be demanded at any time. If the Customer is in default of payment, ITpoint will send at least two written payment reminders to the Customer. If the Customer does not respond to the payment reminder, ITpoint shall be entitled to suspend all further deliveries and services to the Customer in whole or in part until its claims have been settled or secured. All consequences resulting from such a suspension of deliveries shall be borne exclusively by the Customer.
Upon ITpoint‘s request, the Customer shall assign its claims against end customers arising from the resale of the products delivered by ITpoint to ITpoint on account of payment.
The customer is obliged to pay the invoice irrespective of whether he can deliver, invoice or collect the products from his end customer within the scope of resale.
5. Retention of title
The products delivered by ITpoint shall – as long as they are within the Customer’s sphere of influence – remain the property of ITpoint until ITpoint has received the purchase price in full and in accordance with the contract. Until this time, ITpoint shall be entitled to enter the retention of title in the retention of title register at the Customer’s place of residence in accordance with Art. 715 of the Swiss Civil Code. The Customer undertakes, upon request, to immediately give ITpoint its written consent to the registration of a reservation of title in all points essential for the registration (cf. Art. 4 para. 4 of the Federal Court Ordinance). As long as the purchase price has not been paid in full, the Customer shall be obliged to maintain the products delivered by ITpoint, to treat them with care and to insure them against all usual risks. Furthermore, the Customer is obliged to take all measures to ensure that ITpoint‘s title is neither impaired nor cancelled.
6. Scope of delivery
The written purchase contract, project contract or order confirmation or delivery note shall be decisive for the scope and execution of the delivery. Services not included therein will be invoiced additionally. We reserve the right to make changes to the design and execution of the object of purchase at any time. There is no obligation to make such changes to products already delivered. Partial deliveries are permissible and will be invoiced. Changes or cancellations of orders requested by the Customer require a written agreement with ITpoint. ITpoint may charge the Customer for costs already incurred.
ITpoint shall be free to assign performance obligations under contracts to suitable third parties capable of performing the service, if necessary, provided that this does not have any disadvantageous effects for the Customer with regard to costs, quality and timely performance of the service to be rendered. A full or partial assignment of performance obligations shall not affect the legal relationship between ITpoint and the Customer. The contractually required warranty shall remain with ITpoint.
7. Delivery obligation
Impossibility of performance through no fault of ITpoint or unreasonable impediment of performance shall release ITpoint from its obligation to deliver. The contractual relationship shall remain unaffected. In case of non-compliance with the payment conditions, ITpoint will send at least two written reminders to the Customer. If the Customer does not respond to these reminders or if the Customer becomes insolvent, ITpoint shall be released from its obligation to perform. In the event of delivery disruptions due to circumstances beyond ITpoint’s control, such as strikes, lock-outs, material failures, transport or operational stoppages at the manufacturer’s or transport problems, ITpoint shall be entitled to cancel the order or the project order.
8. Delivery time
Delivery deadlines serve as guidelines and are not binding as such. ITpoint shall endeavour to comply with them even in the event of unforeseeable difficulties. Failure to meet the delivery dates does not entitle the Customer to withdraw from the contract or to claim damages. If a delivery date is postponed due to a change in the Customer’s order, prices remain subject to change. If ITpoint is not able to provide the contractual services on time, or only partially, because the Customer does not fulfill its obligations on time, or because the Customer subsequently makes changes to the service description, any warranty for the timely provision of services shall lapse.
9. Shipping, transport and insurance
Transport shall be for the account and at the risk of the Customer, unless otherwise agreed in writing. ITpoint must be notified in good time of any special requests regarding shipment, transport and insurance.
Complaints in connection with shipment or transport must be addressed by the customer to the last carrier immediately upon receipt of the delivery or the shipping documents. Insurance against damage of any kind is the responsibility of the customer, unless the parties agree otherwise.
10. Passage of risk and rewards
Benefit and risk shall pass to the Customer upon delivery of the products. If the products are shipped, the benefit and risk shall pass to the Customer at the latest upon dispatch of the deliveries from the ITpoint warehouse in Switzerland.
If the products are not collected by the Customer on time or if the shipment is delayed at the request of the Customer or for other reasons for which ITpoint is not responsible, the risk shall pass to the Customer at the time originally intended for the delivery or shipment. In this case, the products shall be stored at the expense and risk of the Customer for five days and then forwarded to the Customer.
11. Inspection and acceptance of deliveries and services
The Customer is obliged to inspect the products and services delivered by ITpoint for completeness and correctness immediately after delivery or collection and to notify ITpoint in writing of any damage, defects and complaints immediately after discovery, at the latest 10 working days after delivery or collection. If services within the scope of an SLA do not correspond to the specified services, the Customer must report this in writing within 30 days. ITpoint will take care of the restoration of the defect in accordance with the SLA. In the event of failure to notify ITpoint in due time, all warranties and other claims of the Customer shall expire, unless the damage or defect was not recognizable during the required incoming inspection.
ITpoint shall remedy the defects notified to it in due time in accordance with paragraph 1 above as soon as possible and the Customer shall give ITpoint the opportunity to do so.
12. Special obligations of the customer
The Customer undertakes to set up and commission the delivered software and hardware in accordance with the guidelines of ITpoint, the manufacturers or suppliers, or to have this done by ITpoint or other qualified and authorized third parties.
The Customer undertakes to train the users appropriately and properly or to have them trained by ITpoint or other qualified and authorized third parties.
The Customer shall grant ITpoint the access to its premises, the corresponding operating equipment, as well as to the corresponding documentation and manuals, which is necessary for the performance of the services.
The Customer shall document any exceptional conditions and error messages that occur and shall support ITpoint in troubleshooting and fault elimination.
The customer undertakes not to perform any actions on the software and/or hardware during the term of care, maintenance and backup contracts which are not expressly provided for in connection with the intended purpose and the customary use of the software and/or hardware and which the customer is not qualified and entitled to perform. This provision also includes actions of any third parties commissioned by the customer.
13. Return of products
The return of products by the Customer requires the prior consent of ITpoint and shall be at the Customer’s expense and risk. The products must be returned in their original packaging and accompanied by a detailed description of the defect or deficiency and the purchase receipt. ITpoint reserves the right to return products with missing, defective or described original packaging or products that are no longer in perfect condition to the Customer at the Customer’s expense and risk. In the case of a return without a description of the defect, ITpoint may carry out a defect search at the Customer’s expense (minimum expenditure of one hour). In any case, the procedures defined by ITpoint and the manufacturer shall apply. The Customer must request a “return number” from ITpoint before returning the goods.
14. Warranty / Guarantee
14.1 General
Prior to the conclusion of the contract, the customer has satisfied himself of the functionality, qualities and operability of the products offered to him and has obtained advice from independent third parties in accordance with his requirements and as necessary. The customer confirms that he wishes the products in the form presented to him. The customer is responsible for defining the content of the products in accordance with the customer’s needs, in particular with regard to legal requirements and customer-specific wishes.
Regarding third party software and hardware, ITpoint does not assume any warranty, as it is not a contractual partner. Regarding these warranties, reference is made to the separate contract between the Customer and the respective third party supplier.
It is possible that third-party products used by ITpoint contain errors in certain versions or that the products are delivered too late. ITpoint cannot accept any liability for such cases. The same applies to the unforeseeable failure of ITpoint employees, for which ITpoint is not responsible.
ITpoint cannot guarantee that the products delivered by it can be used uninterruptedly and error-free in all combinations desired by the Customer with any data, EDP systems and programs, nor that the correction of a program error excludes the occurrence of other program errors. In particular, ITpoint cannot guarantee that the products created by it will function via interfaces with any other software.
14.2 Project Services
ITpoint generally provides a warranty for all products. The warranty periods for the various product groups and services vary. Details about the warranty period of the individual product areas are mentioned in the price lists, contracts or billing documents. If these details are missing in the valid price lists or delivery documents, a parts guarantee of 6 months from the date of invoicing shall apply to the hardware.
The responsibility for the selection, configuration, deployment and use of products, as well as the results achieved with them, lies with the customer or the purchaser of the products, i.e. the end customer.
The Customer acknowledges that ITpoint does not perform incoming inspections of products delivered by manufacturers or suppliers.
ITpoint will remedy defects due to demonstrably poor material or defective workmanship in accordance with the parts warranty during the warranty period, improve or replace defective parts. Compensation for other direct or indirect damages is expressly rejected, insofar as the exclusion is legally permissible.
Furthermore, the Customer acknowledges that in any case a defect is only present if it is reported to ITpoint in detail in writing immediately after discovery and contains a relevant and reproducible error. The warranty shall be excluded in particular for defects which are based on one of the following causes:
- inadequate maintenance
- failure to follow operating or installation instructions;
- improper use of the products;
- use of unauthorized parts and accessories;
- natural wear and tear;
- transport, improper handling or treatment;
- modifications or attempted repairs;
- violation of the contractual obligations of the customer
- external influences, in particular force majeure (e.g. failure of the power supply or the air conditioning system, damage caused by natural forces), as well as other reasons for which neither ITpoint nor the manufacturer/supplier are responsible.
The Customer shall examine the documents submitted to it during performance (project basis, implementation concept, various checklists, etc.) and notify ITpoint in writing of any objections or defects immediately, but no later than 30 working days after delivery by ITpoint. The productive use of systems supplied by ITpoint for 30 days without a written statement by the Customer shall be deemed to constitute acceptance of the service provided.
14.2 Managed Services
If a customer purchases Managed Services from ITpoint, these are subject to a separate Service Level Agreement (SLA). The services and availabilities are regulated in this SLA and stand above the GTCs.
15. Liability
ITpoint shall only be liable for direct damage and only if the Customer proves that such damage was caused by gross negligence or intent on the part of ITpoint, its auxiliary persons or third parties commissioned by ITpoint. Liability shall in any case be limited to the immediate rectification of the circumstances causing the damage. Liability shall be limited to the price of the respective delivery/service. Any further liability of ITpoint, its auxiliary persons and third parties commissioned by ITpoint for damages of any kind shall be excluded. In particular, the Customer shall under no circumstances be entitled to claim compensation for damages which have not occurred to the product itself, such as loss of production, loss of use or loss of data, loss of orders, loss of profit and other indirect or consequential damages.
Effects of force majeure, as well as events beyond ITpoint‘s sphere of influence, such as war, strikes, lockouts, official measures of any kind and impairment of transport routes in the countries of manufacture, transit or destination of the software and/or hardware to be delivered shall release ITpoint from any liability.
ITpoint assumes liability up to a maximum of CHF 100,000 for direct damage to property or personal injury caused by or in connection with the performance of this contract (e.g. breach of duty of care or warranty of quality) by ITpoint, its personnel or auxiliary personnel, as well as for the resulting financial losses. This limitation of amount does not apply to cases of unlawful intent or gross negligence.
16. Software Licenses / Copyright
Unless otherwise agreed, the software licenses acquired by the Customer shall give the Customer the non-transferable and exclusive right for the Customer’s own use. All other rights remain with ITpoint or its licensors.
All industrial property rights to goods and works which ITpoint provides in its own name (concepts, software etc.) shall belong exclusively to ITpoint, i.e. shall pass to ITpoint insofar as and to the extent that they do not already arise there.
The infringement of the software licenses, in particular the unauthorized transfer of programs, program copies or program manuals, shall give rise to an obligation on the part of the Customer to compensate ITpoint at least in the amount of the claims asserted against ITpoint.
In the event that third parties assert claims against the Customer due to intellectual property rights allegedly belonging to them in software or concepts created by ITpoint, ITpoint shall be informed immediately by the Customer. ITpoint shall, at its request and if possible, conduct the lawsuit itself, participate in the Customer’s lawsuit and/or modify the software. If the Customer fails to notify ITpoint immediately in writing, it shall lose any right of recourse.
Copyright and licenses for third-party software are governed in addition by the provisions between the software supplier and the customer.
17. Re-export
All products are subject to the export control regulations of the exporting countries and the Swiss import regulations. The Customer is responsible for compliance with all import and export regulations.
18. Data protection and confidentiality
The Customer undertakes to treat all perceptions, information and documents which are accessible to them within the scope of their cooperation and which affect the secrecy of ITpoint with due care and confidentiality, and to use them only to the extent necessary to achieve the purpose of the contract. This obligation shall continue to apply without restriction beyond the term of the contract. The parties mutually assure each other to treat all business secrets of which they mutually gain knowledge within the scope of this contract and which are not public, with absolute confidentiality. They mutually assure each other that they will also impose this confidentiality on their employees and agents.
Furthermore, the Customer agrees that ITpoint may process Customer-related data for the purpose of checking the Customer’s creditworthiness and disclose such data to the credit insurance company commissioned by ITpoint.
19. Miscellaneous
Rights and/or obligations from individual contracts (deliveries, services) may only be transferred by the Customer with the prior written consent of ITpoint.
Swiss law is exclusively applicable to any disputes. The place of jurisdiction is ZUG.
Should parts of the contract or the GTC be void or become legally ineffective, the remainder of the contract shall continue to apply. The contracting parties shall then interpret and structure the contract in such a way that the purpose intended by the void or legally ineffective parts is achieved as far as possible.
Rotkreuz, July 2014