General terms and conditions
1. Subject matter of the terms of delivery and payment
Our deliveries, services and offers are made exclusively on the basis of these terms and conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon acceptance of the goods or services. Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby already contradicted. All agreements in connection with this contract are only effective if they are confirmed by us in writing.
2. Offers and conclusion of contract
Our offers are subject to change and non-binding. Declarations of acceptance require our written confirmation to be legally effective.
3. Delivery times
Delivery dates or deadlines must be in writing. We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us – this also includes material procurement difficulties that occur subsequently, operational disruptions, strikes, lockouts, lack of personnel, lack of means of transport, official directives, even if they occur at our suppliers or their sub-suppliers – even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled. If we are responsible for non-compliance with bindingly agreed deadlines and dates or if we are in default, the customer shall be entitled to compensation for default in the amount of 0.5% for each full week of default, but in total not more than 5% of the invoice value of the deliveries and services affected by the default. Any further claims are excluded unless the delay is due to intent or gross negligence on our part. We are entitled to make partial deliveries and render partial services. If the delivery of a delivery item ready for dispatch is postponed by more than one month at the request of the customer, we shall be entitled to charge the customer storage fees amounting to 0.5% of the invoice amount of the delivery item concerned for each month or part thereof.
4. Transfer and transfer of risk
Packaging, insurance, dispatch and transport shall be at the customer’s expense. The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transport or has left our distribution warehouse for the purpose of dispatch. In the event of refusal of acceptance, the risk shall pass to the customer upon notification of readiness for dispatch. The customer shall have the installation preparations and the equipment necessary for the power supply carried out at his own expense and responsibility before delivery of the equipment. They must comply with our specifications and the applicable technical standards. The customer shall provide trained operating personnel in good time. We are regularly not responsible for connecting our equipment and deliveries with devices or programmes of the customer. Programmes supplied by us shall be installed at the installation site on the equipment provided by the customer, if not supplied by us. Installation work is not included in the licence prices and will be charged separately. The same applies to programme-specific instructions. Upon request, the customer shall confirm the operational readiness of our delivery and service in writing.
5. Warranty and liability
In order to maintain his warranty claims due to obvious defects or incompleteness of the performance, the customer must give notice of the defect within 8 days of receipt. In accordance with the above, we provide a warranty of 6 months after the transfer of risk. We shall only be liable under the warranty for defects which are not due to natural wear and tear and which significantly impair the usability of the performance. We are therefore not liable for hardware and software running without interruptions and errors, insofar as this is within the scope of the problems usually occurring during the commissioning of data processing systems. In the event of justified complaints, we shall remedy the defect. In the case of essential third-party products, our liability shall be limited to the assignment of the liability claims to which we are entitled against the supplier of the third-party product. Any warranty shall lapse if the customer himself carries out or has carried out defect rectification work without our consent or if our installation conditions, operating and maintenance instructions have not been complied with. Further warranty claims, in particular claims for compensation for damage that has not occurred to the delivery item itself, e.g. due to loss or incorrect processing of data, are excluded unless the damage has been caused by intentional or grossly negligent conduct. If the customer requests that warranty work be carried out at a location specified by him, we may comply with this request, whereby the additional costs incurred (e.g. working time and travel expenses) shall be borne by the customer.
6. Retention of title
The delivered items shall remain our property until all claims (including all current account balance claims) to which we are entitled against the customer for any legal reason now or in the future have been settled. The pledging or transfer of ownership by way of security of the delivery item by the customer is not permitted until all our claims against the customer have been paid in full. In the event of seizure or confiscation or other dispositions by third parties, the customer must notify us immediately. If our delivery item is processed, the processing shall be carried out for us. If the customer processes, combines or mixes the delivered item with other items, we shall be entitled to co-ownership of the new item on a pro rata basis. If the object delivered under reservation of title is sold by the customer, irrespective of its condition, the customer shall already assign to us upon conclusion of the contract the claims arising for him from the sale against his customer or third parties with all ancillary rights. We authorise the customer to collect the claims assigned to us for our account in his own name. This authorisation to collect may be revoked if the customer does not properly fulfil his payment obligations. In this case, we are further entitled to demand the return of the reserved goods. A right of retention cannot be asserted against the claim for return.
7. Prices and payment
All prices are net fixed prices plus the applicable value added tax. Prices without a currency designation are always in EURO, otherwise in the specified currency. All payments must be made within a period of 10 days after receipt of the invoice without deduction. The day of payment shall be the day on which we can dispose of the money. We shall be entitled, despite any provisions of the customer to the contrary, to first offset payments against the customer’s older debts or against costs and interest. If the customer is in default, we may charge interest at a rate of 5% above the usual bank interest rate for an overdraft facility of our house bank. The customer is only entitled to set-off, retention or reduction if the counterclaims have been legally established or are undisputed.
Unless the customer has concluded a separate licence agreement with us for the software products provided by us, we grant the customer the non-exclusive licence to use the software products provided to him, including the documentation, against payment of the corresponding remuneration. In principle, the licence conditions of the manufacturer shall apply. In case of doubt, the customer may only operate the software on those computer systems and programme carriers which he has either acquired directly from us or/and which are listed in detail in our order confirmation or in the purchase contract. The customer is only entitled to copy the original copy for security purposes and while retaining the property right notice. If a copy protection plug is a prerequisite for the use of the software, the software and copy protection plug shall constitute a unit and shall only be delivered together. The separate subsequent delivery of a copy protection plug shall only be made against return of the defective plug. The customer is not entitled to transfer the licence either in whole or in part to third parties or to pass on the software products and/or documentation to third parties, to publish them or to permit their use. Furthermore, the customer shall protect the software from access by third parties and shall inform all persons who have access to these products of the obligations assumed by him in this clause accordingly. The customer is obliged – for example by making a backup copy – to secure its data. The licence shall terminate automatically upon cessation of use of the computer system for which this licence was granted or due to termination without notice for good cause. The rights to use the software are linked to the terms of payment. The above obligations apply accordingly to the use of our know-how. In the event of culpable infringement of the above provisions by the customer, we reserve the right to demand a contractual penalty in the amount of EURO 10,000.00, without prejudice to the assertion of further damages.
The place of performance and exclusive place of jurisdiction for all obligations is Gams – Switzerland. However, we are also authorised to sue the customer at his general place of jurisdiction. The assignment of rights of the customer requires our express consent. The legal relationship between the customer and us shall be governed exclusively by Swiss law, even in the case of legal relationships with foreign customers. The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective. In this case, the parties undertake to replace the invalid provisions with provisions that come as close as possible to the economic sense and purpose of the original provisions.
10. Changes to the General Terms and Conditions
Key & Card AG will notify the Principal of any amendment to the General Terms and Conditions or the introduction of additional provisions. If the notification has been made, the amendment is deemed to be accepted if the Principal does not object within one month.