AGB - June 2014

1 Scope and applicability

These General Terms and Conditions (GTC) govern all legal relationships between customers (hereinafter referred to as customers) and Incite GmbH. They are valid for all services, products and third-party products distributed by Incite GmbH. The GTC form an integral part of all contracts concluded between customers and Incite GmbH, unless otherwise expressly agreed. Provisions deviating from the GTC shall only be legally binding if they are expressly offered by Incite GmbH or expressly accepted by Incite GmbH in writing.


2 Service description

Incite GmbH provides services in the areas of consulting, service, programming, engineering and sells its own products, as well as third-party products from software and hardware manufacturers. The content and scope of the individual services and products result from the service descriptions contained in the respective contracts, agreements and order confirmations. The content agreed in detail in these service descriptions shall take precedence over the GTC. For third-party products, the manufacturer's specifications shall apply.


3 Entry into force of contracts

A contract shall come into force on the date of signing by the parties or, at the latest, on the date of commencement of the use of the service or delivery of the product or third-party product. If an order of the services, products or third-party products is made verbally, it will be confirmed in writing in any case and is considered validly placed if it is not revoked by the customer immediately after receipt of the confirmation. Offers are binding during the period specified by Incite GmbH. In the absence of such, the offer remains valid for 30 days from the date of the offer. For offers of third party products the daily price is valid.


4 Prices, fees, approaches and terms of payment

4.1 Principles

The customer shall pay a price for the individual services, products, third party products and expenses, which is stated in the respective contracts, agreements and order confirmations and/or price lists. If a project lasts more than one month, monthly invoices will be issued. All prices and charges are exclusive and strictly net, in Swiss francs.


4.2 Fix prices

If the performance of a service is agreed in the service description at a fixed price, this is based on the bases known at the time of the conclusion of the agreement. Should these basics change significantly during the realization of the project, and this was not foreseeable for Incite GmbH, Incite GmbH can demand an adjustment of the fixed price. Unless otherwise agreed, Incite GmbH will issue the invoice upon delivery of the license key. For special developments, Incite GmbH will invoice 50% of the fixed price before the start of the order and 50% after acceptance. All additional services are billed on a time basis and monthly. Products from third party suppliers will be invoiced immediately upon receipt by the customer.


4.3 Hourly rates

The applicable hourly rates for services are based on the applicable price list.


4.4 Terms of payment

All invoices and claims of Incite GmbH against its customers are due immediately and must be paid without deduction by the date specified on the invoice form under "Payment Arrangements". Objections or justified objections can be submitted in writing within this period, but not later than 30 days after the invoice date. After expiry of this period, the invoice shall be deemed to have been approved. The due date is also the expiry date. If a customer has neither paid the invoice nor submitted written justified objections to it by the date specified on the invoice form under payment agreements, a default interest of ten percent (10%) per year is owed from the due date, as well as the payment of reminder fees, without any further notice of default being necessary. Incite GmbH is entitled in case of default of payment by the customer, without further notice to suspend its services without compensation, after a warning to initiate debt collection and to arrange the collection at the expense of the customer by a third party. Deductions from the invoice amounts to be paid are not allowed by offsetting against any counterclaims or for other reasons.

 

4.5 Extends terms of payment 

Incite GmbH kann Massnahmen zur Sicherstellung ihrer Ansprüche in Form von Vorauszahlungen, Bankgarantien etc. verlangen.


4.6 Price changes

Incite GmbH reserves the right to adjust prices, fees and rates accordingly.


5 Reservation of ownership

The products delivered by Incite GmbH and third-party products remain the property of Incite GmbH or the third-party supplier until full payment has been received, and the customer is not entitled to resell or pledge them. The customer is obliged to cooperate in measures to protect the property of Incite GmbH or the third party supplier.


6 Dates and delivery periods

Dates and delivery periods apply according to written agreement. Incite GmbH is always striving to meet the agreed deadlines. However, Incite GmbH can not guarantee their compliance and the customer is not entitled to make claims of any kind due to delays. A possible exceeding of deadlines also does not entitle the customer to withdraw from the contract or to terminate it. The specification of binding delivery periods and delivery dates by Incite GmbH is subject to the correct and timely delivery by suppliers and manufacturers. Incite GmbH provides its services in principle during normal working hours, Monday to Friday from 7.00 - 17.00, excluding local holidays at the respective residence of Incite GmbH.


7 Involvement of third parties

Incite GmbH is entitled to involve third parties for the fulfillment of the contract with the approval of the customer. The approval may not be refused without good cause. Incite GmbH is liable for the services of third parties as for their own services.


8 Obligations for customers

8.1 Preparatory and support actions

The customer is obligated to perform all technical, operational and personnel preparation and support actions incumbent upon him with regard to the services to be provided by Incite GmbH correctly, in a timely manner and free of charge. In particular, the customer must provide the information and materials necessary for the performance of services in a timely manner and grant Incite GmbH the necessary access with regard to the performance of the contract. The customer shall designate a contact person for Incite GmbH who is exclusively authorized to make decisions regarding operational matters of the services to be provided and who has the necessary time resources.

8.2 Instructional compliance

The customer is obligated to follow all instructions of Incite GmbH regarding the use of hardware and software as well as the use of software created by Incite GmbH and to take all reasonable safety precautions (also for the protection of equipment owned by Incite GmbH). Hardware and software may not be modified by the customer or installed or mounted on untested systems (except for software solutions hosted by Incite GmbH).


8.3 Compliance with the regulations

The customer shall ensure that the services, products and third-party products for which he has concluded a contract with Incite GmbH are used in accordance with the law and the contract. He is obliged to comply with all legal requirements and assumes sole responsibility for the content and functionality of the data available on his systems and storage media. Incite GmbH disclaims any liability in this regard. The customer is obligated to indemnify Incite GmbH against all claims of any kind, which third parties assert against Incite GmbH in connection with the customer's use of Incite GmbH's service.


8.4 Omission of duties

If the customer does not comply with his above-described obligations comprehensively or not in a timely manner, any responsibility of Incite GmbH for possible non-contractual performance is void. If delays or additional expenses arise, Incite GmbH may require the adjustment of the agreed dates and the increase of the fee. If the customer does not meet his obligations even after setting a reasonable grace period, Incite GmbH is also entitled to demand full compensation for the damage incurred. The termination of the contract without notice is also reserved.


8.5 Special regulations of the customer

Operational regulations of the customer, in particular safety regulations, working time regulations and/or house rules can only be observed if they are communicated to Incite GmbH in writing before the start of work.


9 Delivery, testing, acceptance and default of acceptance

9.1 Product delivers and third party products

Delivery is always at the discretion of Incite GmbH and at the risk and expense of the customer. Complaints about damage, loss or destruction during transport are to be addressed by the customer directly and the relevant transport company. The customer has to check the deliveries immediately after receipt and make any complaints in writing within ten (10) days. If he fails to do so, or if he uses the delivered products productively, the delivery shall be deemed accepted, unless otherwise agreed in writing. Incite GmbH will forward complaints to the respective third party supplier for handling.


9.2 Inspection and acceptance of services

The customer shall inspect the services of Incite GmbH immediately after completion of the service provision or after receipt of the notification of operational readiness and report any complaints or defects in writing within the next ten (10) days. Deviations from the contractual requirements and functions (significant defects) will be corrected by Incite GmbH in accordance with the provisions of Section 14, Warranty. Other complaints will be handled by Incite GmbH at its discretion. If the customer omits the timely inspection or acceptance or takes the services before in operational use, they are considered approved and accepted. Minor defects that do not significantly affect the operational business of the customer are not an obstacle to acceptance.


9.3 Default of acceptance

If the customer is in default of acceptance, Incite GmbH is entitled to store ordered or in connection with services of Incite GmbH provided hardware and software at the expense and risk of the customer, to stop the performance of services and after unused expiry of a grace period set for acceptance, to withdraw from the contract. In this case, the customer must pay for all services provided by Incite GmbH.


10 Intellectual property

10.1 Terms of use

Incite GmbH or its licensors shall remain the owner of all intellectual property rights related to the provision of services and the related documents and documentation. This also applies if changes or extensions are made by Incite GmbH. If agreed in writing, the customer is entitled to a non-transferable and non-exclusive right of use after full payment of the agreed fee for the work results, documents, evaluations or programs created by Incite GmbH within the scope of the service description. The customer programs may be used only on specified equipment and systems and only for their own purposes, but in no case reproduced, made available to third parties or transferred. The customer's right to use standard software and documents from third-party suppliers shall be governed by the terms and conditions of the third-party suppliers. The customer undertakes to comply with these provisions at all times.


10.2 Violation of the terms of use

In the event of violations of use or infringement of the intellectual property of Incite GmbH, its licensors or third-party suppliers by the customer, Incite GmbH reserves the right to terminate the contract for important reasons without notice. The assertion of damages (maximum the amount of the order volume), as well as the claim for restoration of the lawful state remain reserved.


11 Industrial property rights of third parties

11.1 Assistance in case of infringement of property rights

Incite GmbH shall defend the customer against all claims made against the customer in connection with the provision of services by Incite GmbH due to the infringement of a Swiss property right, provided that the customer immediately notifies Incite GmbH in writing of such claims and Incite GmbH offers and assists in the exclusive conduct of any litigation and all negotiations for the judicial or extrajudicial settlement of the legal dispute.

11.2 Remedy for infringement of property rights

If Swiss property rights of third parties have been violated or if this is probable in the opinion of Incite GmbH, Incite GmbH has the choice to either procure the right for the customer to continue to use the service in question, to replace it or to modify it in such a way that the violation of the property rights no longer exists, or to take back this service and to reimburse the customer for the payment made by him, deducting an appropriate compensation for the use made. The customer shall not be entitled to any other claims against Incite GmbH in the event of an infringement of property rights.


11.3 Non-actionable infringements of property rights

Incite GmbH is not liable for infringements of property rights if a claim arises from the use of services according to the service description in connection with services (hardware and software) that were not delivered by Incite GmbH, or if an infringement of property rights is due to modifications of the services of Incite GmbH by the customer or third parties.


11.4 Infringements of property rights by third-party suppliers

For violations of property rights by deliveries and services of third party suppliers, the provisions on property right violations of these suppliers shall apply. Incite GmbH shall not be liable for such infringements.


12 Secrecy

Both parties are obliged, even beyond the duration of the contractual relationship, to keep secret all business secrets made accessible to them as well as all other confidential information, data and documents received or perceived in connection with the preparation of the offer, the preparation of the provision of services, the contract negotiations or the performance of the contract and to use them only within the framework of the contractual relationship.

 

13 Data protection

The customer undertakes to comply with all applicable data security and data protection regulations. The Swiss Data Protection Act applies to business relationships with customers in Switzerland and/or abroad. The disclosure of confidential information to third parties requires the prior written consent of the other party. Insofar as Incite GmbH processes personal data for the customer, the customer is obliged to exercise and fulfill his full responsibility as the owner of this data at all times. He has to determine in particular also purpose and means of the processing of these data. Incite GmbH is the sole processor of such data and does not assume any data protection responsibilities for the customer as the owner of such data. Incite GmbH has the right to inspect and document all data and information of the customer for the purpose of ensuring lawful use.


14 Warranty

14.1 Duty of care

Incite GmbH is responsible to the customer for the careful and contractual performance of its services. Incite GmbH cannot guarantee that the products or supported systems delivered by it can be used uninterruptedly and error-free in all desired combinations.


14.2 Improper handling

The warranty shall also not apply in the event of defects and malfunctions for which Incite GmbH is not responsible, such as natural wear and tear, accident, force majeure, improper handling, intervention by the customer or third parties, excessive use, unsuitable equipment or extreme environmental influences. The warranty is void in particular if a defect is due to third party interference or a malfunction of the infrastructure used by the customer or if the customer or third parties intervene in hardware or software or manipulate or modify them without prior written consent of Incite GmbH. If the customer distributes products abroad, Incite GmbH is also exempt from a warranty.


14.3 Entry

If a warranty case exists, Incite GmbH shall remedy any defects at its own discretion (e.g. rectification, replacement delivery). If Incite GmbH cannot remedy the defects within a reasonable period of time, the customer is entitled to a reduction of the paid remuneration for the affected service, or, if the reduced value reaches the amount of the paid remuneration, to a refund of the remuneration with deduction of a reasonable compensation for the use made against return of the affected service. Warranty claims must be made in writing within ten (10) days after the occurrence of a warranty case, specifying the defect and the circumstances of its occurrence. Services of Incite GmbH, which go beyond the scope of the warranty claims of the customer, will be provided by Incite GmbH as far as possible and charged according to the valid price lists.


14.4 Third party manufacturer

For services and deliveries of third party manufacturers, their warranty and terms and conditions apply exclusively (except for software solutions hosted by Incite GmbH).


15 Liability

15.1 Exclusion

Any liability or obligation for damages directly related to the provision of services by Incite GmbH as well as for other damages, in particular indirect damages, consequential damages such as lost profits, unrealized savings, additional expenses or claims of third parties or loss of data as well as for damages resulting from delayed delivery is expressly excluded to the extent permitted by law. Liability is limited to damages resulting from intentional or grossly negligent conduct. Incite GmbH is also not liable for damages caused by accident, by force majeure or by third parties (if the third parties are not employed by Incite GmbH).


15.2 Third party products

In the case of third-party products, the provisions of the manufacturer shall apply. Incite GmbH disclaims any liability for claims arising from the failure or malfunction of third-party products (for example, service costs for renewed removal and installation of software / hardware). Incite GmbH is committed to the customer to provide regular information about the progress of orders and project work, as well as to notify the circumstances that could jeopardize a contractual performance. Incite GmbH is not liable in any way for the performance of third party suppliers. Incite GmbH may, in consultation with and for the account of the customer, assert contractual claims against third party suppliers.


16 Force majeure

If, despite all due care, a party is unable to fulfill its contractual obligations due to force majeure such as natural events of particular intensity, warlike events, strikes, unforeseeable official restrictions, etc., the fulfillment of the contract shall be postponed in accordance with the event that has occurred.


17 Export

The export of products that are subject to an export ban by the Import and Export Department of the Federal Department of Economic Affairs or corresponding foreign authorities is prohibited. The customer undertakes to comply with such export bans.

 

18 Changes and terminations

18.1 Changes

Unless a special amendment process is provided for in the service descriptions, the parties may agree in writing on amendments to the service description at any time. Incite GmbH shall otherwise notify the customer of changes to the GTC, the order modalities, the contracts and agreements in a timely manner. Changes entitle the customer to terminate the contract within the ordinary notice period. Without notice within this period, the changes are considered approved by the customer.


19 Termination

Unlimited contracts can be terminated in writing by either party with one month's notice. In the case of fixed-term contracts, the term of the contract shall be tacitly extended by a further year in each case if the contract is not terminated with one month's notice before expiry of the term of the contract. Deviating agreements of the parties remain reserved.
Incite GmbH may terminate contracts at any time by notice to the customer without notice and / or discontinue its services and deliveries, if the customer violates a material provision of the contract, in connection with the use of the services of Incite GmbH illegal or objectionable activities undertakes or tolerates, with the payment of invoice amounts in arrears, becomes insolvent, enforcement measures are taken against him or otherwise his economic situation changes in such a way that the rights of Incite GmbH are endangered.


20 Partial invalidity

If individual provisions of these terms and conditions are invalid or ineffective, this has no effect on the validity of the remaining provisions and the GTC as a whole. In such a case, the parties shall endeavor to replace the invalid or voidable provision with another valid and enforceable provision that comes as close as possible to the invalidated provision in its legal and economic content. The same shall apply to the filling of contractual gaps.


21 Applicable law and place of jurisdiction

All legal relations between customers and Incite GmbH are subject to Swiss law. The place of jurisdiction is CH-5643 Sins AG. Incite GmbH is, however, entitled to sue the customer at his registered office or place of residence.

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