for the sale and delivery of organizational and programming services and work usage licenses for software products (B2B)

1. Scope and validity of the contract

1.1.

All orders and agreements shall only be legally binding if they are signed by the Contractor in a legally sufficient manner and in writing and shall only bind the Contractor to the extent specified in the order confirmation.

1.2.

The validity and applicability of purchasing conditions or other general terms and conditions of the customer are hereby excluded for the legal transaction in question and the entire business relationship between ANG SCHWEIZ AG and the customer.

1.3.

Offers made by the contractor are generally non-binding.

2. Performance and testing

2.1.

The subject of an order can be:

Development of organizational concepts

• Global and detailed analyses
• Creation of individual programs
• Delivery of library (standard) programs
• Acquisition of usage authorizations for software products
• Acquisition of work use licenses
• Assistance with commissioning (changeover support)
• Telephone advice
• Program maintenance
• Creation of program carriers
• Other services

2.2.

Individual organizational concepts and programs shall be developed in accordance with the type and scope of the binding information, documents and resources provided in full by the client. This also includes practical test data and sufficient test facilities, which the client shall make available in good time, during normal working hours and at its own expense. If the client is already working in live operation on the system provided for testing, the responsibility for securing the live data lies with the client.

2.3.

The basis for the creation of individual programs is the written service description, which the Contractor prepares against cost calculation on the basis of the documents and information made available to him or provided by the Client. This service description must be checked by the client for correctness and completeness and provided with his approval note. Subsequent requests for changes may lead to separate deadline and price agreements.

2.4.

Individually created software or program adaptations require program acceptance by the client for the respective program package concerned no later than four weeks after delivery. This shall be confirmed by the client in a protocol (check for correctness and completeness on the basis of the service description accepted by the contractor using the test data provided under point 2.2). If the Client allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed to have been accepted on the end date of the aforementioned period (four weeks after the delivery date). If the software is used earlier in live operation by the client (go live), the software shall be deemed to have been accepted on the date of this first use.

Any defects that occur, i.e. deviations from the service description agreed in writing, must be sufficiently documented by the Client and reported immediately to the Contractor, who shall endeavor to rectify the defects as quickly as possible (see also the explanations in Section 8 below). If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance is required once the defects have been rectified. The provisions of section 2.4 above shall apply to this new acceptance.

The Client is not entitled to refuse acceptance of software or other services of the Contractor pursuant to Section 2.1 due to minor defects.

2.5.

When ordering library (standard) programs, the client confirms with the order the knowledge of the scope of services of the ordered programs.

2.6.

Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, the Contractor shall be obliged to notify the Client of this immediately. If the client does not amend the service description or create the conditions that make execution possible for the contractor, the contractor may refuse to execute the order. The Contractor rejects any liability insofar as this is legally permissible. If the impossibility of execution is the result of an omission on the part of the Client or a subsequent change to the service description by the Client, the Contractor shall be entitled to withdraw from the order. The costs and expenses incurred up to that point for the Contractor’s activities as well as any dismantling costs shall be reimbursed by the Client. If a service has become impossible due to circumstances for which neither the Contractor nor the Client is responsible, the claim and fulfillment of the service shall be deemed to have lapsed. This includes, among other things, chance, force majeure (severe natural events, war, strike, terrorism, epidemics and pandemics).

2.7.

Program carriers, documentation and service descriptions shall be sent at the expense and risk of the client. Any additional training and explanations requested by the client shall be invoiced separately. Insurance shall only be taken out at the request of the client.

2.8.

We expressly point out that a barrier-free design (of websites) is not included in the offer, unless this has been requested separately/individually by the client. If the barrier-free design has not been agreed, the client is responsible for checking the service for its admissibility with regard to the Federal Disability Equality Act, insofar as applicable. The client must also check the content provided by it for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Contractor’s liability for the content provided by the Client and its compliance with the applicable laws is excluded to the extent permitted by law.

3. Prices, taxes and fees

3.1.

All prices are quoted in Swiss francs or euros, excluding any value added tax. They apply only to the order in question. The prices quoted are ex the Contractor’s registered office or place of business. The costs of program carriers and any contract fees shall be invoiced separately.

3.2.

For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the Contractor is not responsible, shall be invoiced as actually incurred.

3.3.

The costs for travel, daily and overnight allowances shall be invoiced separately to the client in accordance with the applicable rates. Travel time shall be considered working time.

4. Delivery date

4.1.

The Contractor shall endeavor to meet the agreed dates of performance (completion) as precisely as possible. The Contractor’s liability for non-compliance with agreed delivery dates is – to the extent permitted by law – expressly excluded.

4.2.

The targeted fulfillment dates can only be met if the Client provides all necessary work and documents in full by the dates specified by the Contractor, in particular the service description accepted by it in accordance with point 2.3, and fulfills its obligation to cooperate to the extent required. Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided shall not be the responsibility of the Contractor and may under no circumstances lead to default on the part of the Contractor. Any resulting additional costs shall always be borne by the client.

4.3.

In the case of orders comprising several units or programs, the Contractor shall be entitled to make partial deliveries or issue partial invoices.

5. Payment

5.1.

The invoices issued by the Contractor, including VAT, shall be due for payment without any deductions and free of charges no later than 20 days from the date of invoicing. The Client shall be in default from the 21st day without further ado. For partial invoices in accordance with section 4.3 above, the terms of payment stipulated for the entire order shall apply analogously.

5.2.

In the case of orders comprising several units (e.g. programs and/or training courses, implementation in partial steps), the Contractor shall be entitled to invoice after delivery of each individual unit or service.

5.3.

Compliance with the agreed payment dates is an essential condition for the performance of the delivery or fulfillment of the contract by the Contractor. Failure to comply with the agreed payments when they are due shall entitle the Contractor to suspend the work in progress and to withdraw from the contract without further ado. All associated costs and loss of profit shall be borne by the Client. Default interest of 5% shall be charged in the event of late payment.

5.4.

The client is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or complaints.

6. Copyright and use

6.1.

After payment of the agreed fee, the Contractor shall grant the Client a non-exclusive, non-transferable, non-sublicensable and perpetual right to use the software for the hardware specified in the contract and, to the extent of the number of licenses purchased, for simultaneous use on several workstations, as well as to use all work results created on the basis of the Contractor’s contract for its own internal use. All other rights shall remain with the Contractor. In particular, the Client’s involvement in the production of the software shall not result in the acquisition of any rights beyond the use specified in this contract. Any infringement of the Contractor’s copyrights shall result in claims for damages, whereby full satisfaction shall be provided in such a case.

6.2.

The client is permitted to make copies for archiving and data backup purposes on condition that the software does not contain an express prohibition on the creation of copies by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.

6.3.

If the disclosure of the interfaces is required for the creation of interoperability of the software in question, this must be ordered from the Contractor by the Client against payment of costs. If the Contractor does not comply with this requirement and decompilation is carried out in accordance with copyright law, the results are to be used exclusively to establish interoperability. Misuse shall result in a contractual penalty of CHF 10,000.00. The right to assert further claims for damages is expressly reserved.

6.4.

If the client is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the license terms of the license holder (manufacturer).

7. Right of withdrawal

7.1.

In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Contractor, the Client shall be entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts within the reasonable grace period and the Client is not at fault.

7.2.

Force majeure, labor disputes, natural disasters and transport blockages as well as other circumstances beyond the Contractor’s control shall release the Contractor from the delivery obligation or allow the Contractor to redetermine the agreed delivery time.

7.3.

Cancellations by the client are only possible with the written consent of the contractor. If the Contractor agrees to a cancellation, it shall be entitled to charge a cancellation fee amounting to 80% of the unbilled order value of the overall project in addition to the services rendered and costs incurred.

8. Warranty, maintenance, modifications

8.1.

The Contractor warrants that the software fulfills the functions described in the associated documentation, provided that the software is used on the operating system described in the contract. The prerequisite for the elimination of errors or defects is: that the Customer describes the error or defect sufficiently in an error message immediately after becoming aware of the existence of the error and that this can be determined by the Contractor; that the Customer’s intention not to recognize the software as being in accordance with the contract is clearly expressed in the defect report; the Customer provides the Contractor with all documents necessary for the elimination of the error; the Customer or a third party attributable to it has not interfered with the software; the software is operated under the intended operating conditions in accordance with the documentation. In the case of warranty, improvement shall in any case take precedence over price reduction or rescission. In the event of justified notification of defects, the defects shall be rectified within a reasonable period of time, whereby the Client shall enable the Contractor to take all measures necessary for the investigation and rectification of defects.

8.2.

Corrections and additions that prove to be necessary before the agreed service is handed over due to organizational and technical programming deficiencies for which the Contractor is responsible shall be carried out by the Contractor free of charge.

8.3.

Costs for assistance, misdiagnosis and error and fault rectification for which the client is responsible, as well as other corrections, changes and additions, shall be carried out by the contractor against payment. This shall also apply to the rectification of defects if program changes, additions or other interventions have been made by the Client itself or by a third party.

8.4.

Furthermore, the contractor accepts no liability for errors, faults or damage caused by improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational resources and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.

8.5.

The Contractor shall not provide any warranty for programs that are subsequently modified by the Client’s own programmers or third parties.

8.6.

If the subject of the order is the modification or supplementation of existing programs, the warranty refers to the modification or supplementation. This does not revive the warranty for the original program.

8.7.

Warranty claims (including for hidden defects) shall become time-barred six (6) months after acceptance, to the extent permitted by law.

9. Liability

9.1.

The Contractor shall only be liable to the Client for damage for which it is demonstrably responsible in the event of gross negligence. This shall also apply mutatis mutandis to damage attributable to third parties engaged by the Contractor. In the event of personal injury for which the Contractor is responsible, the Contractor shall be liable without limitation.

9.2.

Liability for indirect damages – such as loss of profit, costs associated with business interruption, loss of data or third-party claims – is expressly excluded.

9.3.

Claims for damages shall lapse in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the damaging party.

9.4.

If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client. In this case, the Client shall give priority to these third parties.

9.5.

If data backup is expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from point 9.2, but shall be limited to a maximum of CHF 10 % of the order amount per case of damage for the restoration of the data, up to a maximum of CHF 15,000.

10. Loyalty

The contracting parties undertake to be loyal to each other. They shall refrain from any enticement or employment, including via third parties, of employees of the other contracting party who have worked on the realization of the orders for the duration of the contract and for 12 months after termination of the contract. The contracting party in breach shall be obliged to pay liquidated damages in the amount of one year’s salary of the employee.

11. Data protection, confidentiality

The Contractor shall oblige its employees to comply with the provisions of the Data Protection Act.

12. Miscellaneous / Severability clause

Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.

13. Applicable law

The contract concluded between the Client and the Contractor shall be governed by Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and conflict of laws provisions.

14. Mediation clause

14.1

In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties agree to initiate mediation proceedings in accordance with the Swiss Rules of Mediation for Commercial Disputes of the Swiss Chambers’ Arbitration Institution in order to settle the conflict out of court.

14.2

All necessary expenses incurred as a result of prior mediation, in particular those for a legal advisor called in, can be claimed as “pre-litigation costs” in subsequent court proceedings in accordance with the agreement.

15. Place of jurisdiction

The exclusive place of jurisdiction for all disputes arising from or in connection with the contract concluded between the Client and the Contractor shall be Regensdorf, Canton of Zurich, Switzerland.