General Terms and Conditions

General

1 Scope of Application

1.1 These General Terms and Conditions (GTC) govern the business relationships between CONVOTIS Schweiz AG, hereinafter referred to as ‘CONVOTIS’, and its customers (Customer). They form an integral part of each contract between CONVOTIS and the Customer from the moment services or products are purchased. They shall also apply to all future relations between the two parties without the need for express confirmation each time.

1.2 The Customer expressly waives its own general terms and conditions and fully accepts these GTC. The Customer’s own order confirmations shall not affect this provision, regardless of any provisions to the contrary on said order confirmations.

1.3 Any deviation from these GTC is only valid if it is expressly agreed in writing. CONVOTIS is obliged to communicate any changes to these GTC to the Customer without being requested to do so; the new version of the GTC shall apply to all contracts concluded after their entry into force.

2 Contract Structure and Conclusion

2.1 The contract between CONVOTIS and its Customers consists of a contractual document and these GTC. The contractual document may take the form of an offer accepted by the Customer, a written contract in the conventional sense, or an online form used to order a service. It covers the commercial and technical specifications.

2.2 A contract between CONVOTIS and the Customer is concluded by the Customer accepting an offer made by CONVOTIS, by the mutual signing of a separate written contractual document, or by ordering a service via an online form. The acceptance of the offer may also be effected by uncontradicted action, namely by the Customer receiving or using the services of CONVOTIS.

2.3 Unless stated otherwise, CONVOTIS’ offers are valid for 30 days.

2.4 Unless otherwise agreed, a contract shall be automatically renewed at the end of its term by the initial duration or the notice period of the contract (whichever is the shorter period), unless it has been legally terminated by one of the parties within the specified period.

Services, Duties to Cooperate and Remuneration

3.2 CONVOTIS shall fulfil its contractual obligations with due care and and professionalism, in accordance with the contractual service description. CONVOTIS may call in subcontractors, but remains fully responsible to the Customer for the provision of the services.

3.3 Unless expressly guaranteed, dates for delivery, installation and commissioning are indicative and non-binding.

3.4 Should the services provided be used unlawfully or abusively, CONVOTIS reserves the right to immediately discontinue its services. Abusive use of the service shall be deemed to exist if it is not used as agreed in the contract or if it violates good faith. In the absence of a specified contract, the resources provided, such as storage space, memory or processor capacity, are not unlimited and are allocated according to the typical application. Overuse of capacities can lead to a restriction of the services.

4 Customer’s Obligations to Cooperate

4.1 The Customer shall ensure that all necessary duties to cooperate are provided in good time, to the necessary extent and free of charge for CONVOTIS.

4.2 The Customer shall provide CONVOTIS with all the specifications necessary for the fulfilment of the contract in a timely manner. They shall provide CONVOTIS with the office space and equipment, as well as competent contact persons, required for the provision of the services. Unless CONVOTIS has been expressly commissioned with data backup, this shall be the sole responsibility of the Customer.

4.3 The Customer is required to communicate any changes of address and e-mail addresses, if applicable, to CONVOTIS in a timely and effective manner.

4.4 Any further duties of the Customer to cooperate shall be described in more detail in the contractual document.

4.5 If the Customer fails to fulfil a necessary duty to co-operate, or fails to do so in time or in the agreed manner, CONVOTIS shall issue a warning to the Customer. The consequences arising from the breach of the duty to co-operate (e.g. delays, additional expenses, etc.) shall be borne by the Customer.

5 Remuneration

5.1 The Customer agrees to pay the specified remuneration for the services of CONVOTIS as set out in the contractual document. Please note that this remuneration is exclusive of VAT, unless otherwise stated.

5.2 Payment of invoices is due within 15 days of the invoice date without any deduction. In the event that the specified payment period or due date is not met, the Customer shall be considered in default immediately following the first reminder. Interest at a rate of five percent (5%) per annum shall be charged on late payments.

5.3 Should the Customer default on their payment obligations, CONVOTIS reserves the right to suspend deliveries until all outstanding sums have been settled.

5.4 The Customer shall only be entitled to set off claims which have been accepted by CONVOTIS in writing or which have been established as final and absolute.

6 Intellectual Property Rights

6.1 CONVOTIS reserves all rights concerning the intellectual property of the work results resulting from the fulfilment of the contract. The customer shall be granted a non-exclusive right of use and exploitation of these work results, unlimited in time and place.

6.2 Pre-existing intellectual property rights remain with CONVOTIS or the third party owner.

In the case of intellectual property rights of third parties, in particular software licences of third party manufacturers, the customer shall acknowledge the terms and conditions of use and licence of these third parties; CONVOTIS shall make these terms and conditions of use and licence available to the customer for information purposes upon request.

6.3. Offers, concepts and ideas are the intellectual property of CONVOTIS and may not be used without written consent. These should always be treated confidentially.

Warranties and Default

7 Delay

7.1 If a binding deadline is not met due to circumstances beyond CONVOTIS’s control, the deadline shall be extended appropriately.

7.2 If CONVOTIS is responsible for the non-compliance with a binding deadline, the Customer shall first grant CONVOTIS a reasonable grace period of at least 30 working days for subsequent performance. Should the second deadline also not be met, the Customer may insist on fulfilment of the contract and set further subsequent periods for fulfilment or, should CONVOTIS be in default for a total of over 60 working days, withdraw from the contract. Any services provided in accordance with the contract that have been used by the Customer in an objectively technically and economically reasonable manner shall be remunerated. Withdrawal from the contract shall not affect these services and the provisions of the contract shall continue to apply.

8 Material Warranty and Warranty Rights

a) Third-party products

8.1 For third-party products (all hardware and third-party software delivered separately by CONVOTIS or integrated into its own services or products), the warranty is based exclusively on the warranties provided by the respective manufacturers/suppliers or licensors. This applies to the scope of services, the warranty period, the conditions for asserting the warranty and all other rights of the Customer.

8.2 These warranty rights for third-party products vis-à-vis CONVOTIS exist exclusively to the extent that CONVOTIS claims the warranty from the manufacturer/supplier or licensor on behalf of the Customer. In the event that the manufacturer/supplier or licensor does not voluntarily fulfil its warranty obligation, CONVOTIS shall assign the warranty rights to the Customer for the purpose of legal enforcement.

b)  Products of CONVOTIS

8.3 CONVOTIS warrants that its products and services, when used in accordance with the contract, have the warranted properties and are not defective in a way that nullifies or substantially limits their suitability for use.

8.4 In the event of a defect, the Customer may initially only demand that CONVOTIS repair or replace the defective product.

8.5 If two attempts at repair or replacement fail due to the same defect, the Customer may:

8.5.1 continue to demand performance, or

8.5.2 demand an appropriate reduction in price, or

8.5.3 withdraw from the contract in the case of a material defect as defined in Clause 8.6.

8.6 A product is deemed to have a significant defect if, when used in accordance with the contract, it does not exhibit the warranted characteristics or is so defective that it is unusable by the Customer.

8.7 The warranty shall not apply if the Customer modifies the hardware or software, or has it modified by third parties, and cannot prove that the reported defects were not caused, either in whole or in part, by such modifications and that the defect rectification is not complicated by the modifications. Furthermore, the warranty shall lapse if the customer fails to properly fulfil its obligations to cooperate in accordance with Section 4 or if the defect could have been detected during the test phase or acceptance and no complaint was made.

8.8 Complaints must be submitted in writing within the specified deadlines (see Sections 11 for purchases and 12 for work contracts), accompanied by a detailed description of the error symptoms. The Customer’s claims for defects shall lapse if a defect is not reported within the stipulated time limit.

8.9 The Customer’s rights in respect of defects shall become statute-barred six months after acceptance of the services or installation or, if installation is not carried out, after receipt by the Customer.

c) General provisions

8.10 All warranties and rights in respect of defects not expressly listed above are excluded to the extent permitted by law.

9 Legal Warranty

9.1 CONVOTIS warrants that its products and services do not infringe any intellectual property rights of third parties.

9.2 If a product or service, or a part of it, is the subject of a lawsuit for infringement of intellectual property rights or could be, in the opinion of CONVOTIS, CONVOTIS can choose to either obtain the right for the Customer to use the product free of any liability for infringement of intellectual property rights, replace the product with another that fulfils the essential contractual properties, modify the product so that it no longer infringes any intellectual property rights, or, if none of the above options can be realised with economically reasonable effort, take back the product and refund the purchase price less amortisation on the basis of a five-year straight-line depreciation.

9.3 Should third parties assert claims against the Customer for infringement of intellectual property rights allegedly belonging to them, CONVOTIS will conduct the defence at its own expense and assume any costs and damages imposed on the Customer by a final court judgment if the Customer:

(i) immediately notifies CONVOTIS in writing of the claim asserted, and

(ii) authorises CONVOTIS to conduct the defence, including the conclusion of a settlement, and provides support to an appropriate and reasonable extent, and

(iii) the third party’s claim is based on the fact that the intended use of the unmodified product or service infringes an existing industrial property right in Switzerland or constitutes unfair competition.

10 Liability

10.1 CONVOTIS is liable for culpably caused direct damages, which the Customer has incurred in connection with the contractually agreed fulfilment of services.  The liability for indirect and consequential damages, such as loss of profit, additional expenses, additional personnel costs, unrealised savings, third-party claims or data loss, etc., is excluded.

10.2 CONVOTIS shall not be held liable for damages that can be traced back to software errors of software not produced by CONVOTIS. Similarly, CONVOTIS shall not be held liable for damages caused by malware such as computer viruses or cyber attacks, provided that CONVOTIS has taken the appropriate protective measures in its area of responsibility to defend against them, in accordance with the state of the art.

10.3 CONVOTIS’s liability is limited to 30% of the actual damages incurred, not exceeding the amount of the annual remuneration under the affected contract and up to a maximum amount of CHF 100,000.

10.4 The limitations of liability in this clause 10 shall not apply to personal injury and not insofar as CONVOTIS has acted intentionally or with gross negligence or insofar as mandatory statutory provisions preclude this.

Special Provisions for Individual Types of Contract

11 Special Provisions for the Delivery of Goods and Licences

11.1 The provisions of this clause shall apply if CONVOTIS delivers goods or licences to the Customer on the basis of a purchase contract.

11.2 Unless expressly agreed, installation is not included in the scope of services.

11.3 The Customer shall inspect the purchased item within 10 days of delivery. In the case of installation by CONVOTIS, the period shall only begin once installation has been completed. The Customer shall notify CONVOTIS in writing of any defects discovered within this period.

11.4 Defects that could not be detected during the inspection despite reasonable care must be reported to CONVOTIS in writing within 10 days of their discovery.

11.5 In the event of a defect, the Customer may assert its rights with respect to defects in accordance with Section 8.

11.6 The scope of the permissible use of software is governed by the licence conditions of the software manufacturer.

12 Special Provisions for the Creation of Works

12.1 In the case of services being provided under a contract for work and services (Werkvertrag) by CONVOTIS, a joint inspection shall take place prior to acceptance.

12.2 CONVOTIS shall invite the Customer in a timely manner to the inspection by notifying the Customer of the readiness for acceptance. The inspection and its results shall be recorded in a protocol to be signed by both parties. Partial acceptances are also possible within the framework of the contract. Unless otherwise agreed, delivery shall take place within 10 days after notification of readiness for acceptance by CONVOTIS. If the Customer delays acceptance beyond this period without providing written notification of any defects, the acceptance shall be deemed to have taken place.  Furthermore, CONVOTIS shall consider the product to be accepted if the Customer commences operation or makes alterations to the delivered products.

12.3 Should only insignificant defects be found during the inspection, the product shall nevertheless be accepted upon completion of the inspection. CONVOTIS shall rectify any defects and inform the Customer of the rectification.

12.4 If significant defects (as defined in clause 8.6) are detected during the inspection, the acceptance shall be postponed. CONVOTIS shall remedy the identified defects and invite the Customer to a new inspection. If the Customer is unable to accept the product on a second attempt due to the same defect, they may exercise their rights as outlined in clause 8.5 (continued fulfilment, reduction or, in the case of significant defects, withdrawal from the contract).

12.5 Defects which could not be detected during the acceptance despite appropriate care must be reported to CONVOTIS in writing within 10 days of their discovery.

13 Special Provisions for Support Services

13.1 The provisions of this clause shall apply if CONVOTIS provides support services to the customer.

13.2 CONVOTIS shall provide the support services with due care. However, CONVOTIS cannot guarantee that the supported products can be used without interruption or errors.

13.3 All maintenance contracts with third parties for the Customer’s hardware and software shall be at the Customer’s expense. 

13.4 CONVOTIS shall provide support services during the support hours. Unless otherwise agreed, these hours shall be Monday to Friday from 8:30 a.m. to 11:30 a.m. and from 1:30 p.m. to 5:00 p.m., excluding Sundays and public holidays at the location of the CONVOTIS branch. At the customer’s request, and for an additional charge to the normal rates, CONVOTIS will also start providing its services outside of the support hours or continue work that has already commenced.

The surcharges are defined as follows:

• Monday to Friday, 23:00 to 07:00: 50%;
• Weekend/holidays, 00:00 to 24:00: 100%.

14 Special Provision of Services from Third-Party Providers

14.1 If services or online services from third-party providers are part of the contract between CONVOTIS and the Customer, then the GTCs of the third-party provider shall apply for the use of the services and online services. Upon request, the Customer may demand that the current GTC of the third-party provider be provided to CONVOTIS.

15 IT Security Services

15.1 CONVOTIS provides services in the area of IT security with all due care and by using state-of-the-art tools. However, given the number, technical capabilities and criminal energy of potential attackers, as well as the various vulnerabilities outside of IT (e.g. customer employees deceived by phishing), IT security incidents with far-reaching consequences (e.g. loss of data, interruption of operations) cannot be ruled out even with highly advanced security measures. By using the IT security services of CONVOTIS, the risk of an IT security incident can be significantly reduced. Please note, however, that CONVOTIS cannot guarantee that all vulnerabilities, compliance problems or weak points will be discovered, that IT security incidents can be completely avoided, that they will be detected immediately or that any incidents that do occur will be harmless. Accordingly, the Customer acknowledges that CONVOTIS is not obliged to achieve any specific result within the scope of IT security services, but only to act diligently.

The Customer shall ensure and warrant that they have the necessary rights, consents and authorisations to use the IT security services of CONVOTIS. In instances where this is required by law or as stipulated in contracts concluded by the Customer, the Customer is obliged to obtain consent from their IT service providers and business partners, as well as from the natural persons concerned, for CONVOTIS to conduct security tests that affect their systems and/or data (which may include techniques such as network probing, port scanning, penetration tests, configuration audits, brute force attacks and the like, but not, except with the prior written consent of the Customer, Distributed Denial of Service (DDoS) attacks).

Miscellaneous

Retention of Title

16.1 CONVOTIS retains title to the delivered goods and licences until all claims against the Customer arising from the business relationship have been settled.

16.2 For the duration of the retention of title, the Customer is not permitted to pledge or transfer the goods subject to retention of title as security. The customer must inform us immediately of any attachments, seizures or other dispositions or interventions by third parties.

17 Confidentiality

17.1 The parties undertake to keep secret all facts, information and data, including related documents and data carriers, which become known to them in connection with this contract and which are neither obvious nor generally accessible. This obligation shall also be imposed on third parties. Confidential information also includes quotations, analyses, summaries and extracts prepared on the basis of confidential information. In cases where there is any uncertainty, it is to be assumed that the facts and data in question are confidential. The confidentiality obligations shall apply prior to the conclusion of the contract and shall continue to apply after termination of the contractual relationship or after provision of the agreed service. Statutory disclosure requirements shall remain unaffected. 

17.2 Violation of this confidentiality clause will result in a contractual penalty of CHF 50,000 (fifty thousand Swiss francs) and compensation for any further damages exceeding the amount of the contractual penalty. CONVOTIS may cumulatively demand the actual fulfilment of the obligation arising from the confidentiality clause and the payment of the contractual penalty including compensation for further damages. 

18 Severability Clause

18.1 In the event that any provision of the contract is invalid or unenforceable, such invalidity or unenforceability shall not affect the validity of the remaining provisions of the contract.  In such cases, the invalid or unenforceable provision shall be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. 

19 Written Form 

19.1 Agreements between the parties (offers, acceptances, orders, etc., as well as amendments and supplements thereto) shall only be valid if agreed in writing. The use of fax machines is equivalent to the written form.

20 Applicable Law and Place of Jurisdiction

20.1 The contract is subject to Swiss substantive law.

20.2 The provisions of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980) are excluded.

20.3 The exclusive place of jurisdiction is the competent court in Zug, Switzerland. 

Last update: 01.07.2024beyond CONVOTIS’s control