General terms and conditions
1. Scope and conclusion of contract
These general terms and conditions (GTC) regulate the general aspects of the provision of services by Exxas AG (hereinafter Exxas) to the customer as part of a contract or order. Reference may be made to these terms and conditions both in a contract, an offer, an offer or an order. These terms and conditions are then considered an integral part of the respective contracts and orders. An offer can also be accepted by implied action, in particular by the customer accepting or using the services provided by Exxas.
The terms and conditions also apply to all future relationships between the two parties, without the need for express confirmation each time. In the event of conflicts between individual contracts and orders and these terms and conditions, the provisions of the corresponding contract or order shall prevail over those of these terms and conditions. The customer expressly waives his own general terms and conditions and fully accepts these terms and conditions. The use of the customer's own order forms does not detract from this provision, irrespective of any provision to the contrary on the said order form. Unless otherwise stated, offers from Exxas are valid for 10 days.
Exxas may make changes to these terms and conditions at any time; the new version of the terms and conditions applies to all contracts concluded after their entry into force.
2. Services
2.1 Exxas Services
Exxas provides the services agreed in contracts and orders. Services not explicitly listed in the contract document (e.g. offer) are not included in the scope of services and are charged separately according to expenses. The documents accompanying the offer (illustrations, brochures, etc.) are only relevant if they are expressly described as binding by Exxas. A service contract is only owed if the contract or order expressly states this and describes it as a work.
Exxas will fulfill its contractual obligations carefully and expertly in accordance with the contractual service description. Exxas may use assistants, third parties (in particular subcontractors) or employees from these third parties to fulfill its obligations. Dates for delivery, installation and commissioning are indicative and not binding without express assurance.
2.2 Customer obligations
2.2.1 Compensation and expenses
The customer must pay the fees provided for in the contracts or orders for the services provided by Exxas. All amounts are exclusive of value added tax and any other charges. Services required by the customer, the prices of which have not been specifically agreed upon, will be invoiced based on effective expenditure at Exxas' standard approaches.
Exxas calculates the time spent in 15 minute steps. A minimum order (e.g. support, telephone clarifications, user assistance) is 15 minutes. This covers recording messages (e.g. by telephone or e-mail), order entry with target status and establishing a connection with the customer.
The fees are due in accordance with the agreed payment schedule. Exxas submits due claims by means of an invoice. Invoices are payable net within 30 days. Unless otherwise agreed, commercial products such as hardware and software will be invoiced separately upon receipt by Exxas or by the customer.
The customer is in default without further notice after the payment period has expired. A default interest of 5% p.a. is considered agreed. If the customer is in arrears with a payment, Exxas may make the provision of further services within the framework of the contracts and orders dependent on full payment of outstanding invoices and, at its discretion, also on advance payments or other securities.
Failure to comply with the payment deadline will result in late payment without an express reminder. Exxas reminds the customer in the form of a payment reminder or reminder. If no payment is received based on the payment deadline of the reminder or payment reminder, Exxas can operate the customer and is entitled to 5% default interest from the expiry of the payment period of the invoice and reimbursement of all reminder, collection, lawyer and court costs. If Exxas is forced to operate the customer, Exxas will claim all current claims, expenses that have not yet been invoiced and all future claims made for contracts and subscriptions concluded up to the end of the respective contract.
Offers do not include travel, food and accommodation expenses as well as transport and delivery costs.
Unless otherwise agreed, these costs are borne by the customer and are invoiced separately.
If an order is cancelled prematurely by the customer, the actual hours worked will be charged regardless of the result achieved.
If an order with a planned volume of work of up to 8 hours is canceled or postponed by the customer within 4 working days before an agreed date, 50% of the agreed time or according to an estimated time required by Exxas will be charged. This provision does not apply in the event of an interruption or a postponement due to force majeure.
If an order with a planned volume of work of more than 8 hours is canceled or postponed by the customer within 10 working days before an agreed date, 50% of the agreed time or according to an estimated time required by Exxas will be charged. This provision does not apply in the event of an interruption or a postponement due to force majeure.
2.2.2 Obligations of support and cooperation
The customer ensures that all necessary obligations to cooperate are provided in good time, to the required extent and free of charge for Exxas. The obligations to cooperate are essential obligations of the customer.
The customer must actively and timely support Exxas or its employees and the third parties it has engaged to fulfill the contract in providing their services in every reasonable way, to cooperate in carrying out the necessary preparation and provision actions (including obtaining all necessary rights and permits) and provide the necessary access to its premises and resources.
The customer is also obliged to provide in good time all data, information and documents that could be important for the processing of the individual contracts and services provided by Exxas. Data that must be further processed and exists in electronic form must be submitted electronically to Exxas in a generally accepted, machine-readable format.
If the customer does not or does not properly comply with these obligations or obligations, the resulting consequences (e.g. delays, additional expenses, etc.) shall be borne by the customer. The customer must reimburse Exxas for the additional costs in addition to the currently valid Exxas standard approaches, unless Exxas alone is responsible for the breach of its obligations. If Exxas shares responsibility, the additional costs are borne proportionally by both parties.
2.3 Information requirements
The parties shall inform each other of developments, incidents and findings which may be significant for the other party in connection with the fulfilment of the individual contracts or for the contractual relationship as a whole, insofar as there are no legal or contractual confidentiality obligations to the contrary.
3. Right of withdrawal in the event of late payment/retention of title and its security
After the payment period has expired without use, Exxas is entitled to withdraw its contract performance. This also applies to services where the affected systems are deactivated or switched off by Exxas. When withdrawing them, the customer must provide Exxas with access at any time. Withdrawal of contract performance does not entail withdrawal from the relevant contract, unless this is expressly stated by Exxas.
Exxas and third-party suppliers remain the owner and owner (retention of title) of all delivered contract and third-party products as well as work results created until full payment of the total price and fulfilment of all other payment conditions.
4th acceptance
All products delivered by Exxas, including system software and configurations, are approved in accordance with the test regulations provided by Exxas. If the installation is carried out by Exxas, acceptance takes place at the same time as the installation. Products and services that are not included in the purchase price are considered accepted 14 days after delivery if the customer does not claim before the end of this period that the product does not comply with Exxas IT specifications.
5. Delay
Unless otherwise agreed in writing, Exxas' performance obligations are not considered as expiration dates. Deadlines are considered met with the provision of Exxas services. If Exxas is in default, the customer must grant it a reasonable period of grace twice in writing.
6. Guarantee
6.1 Warranty for commercial customers
Exxas provides its services professionally and carefully.
The warranty and liability extend to the guaranteed characteristics of the contractual scope of services. Only those described as such by Exxas in writing (assurances or warranted characteristics) are considered warranted properties. The limitation period is six months from acceptance of the services or installation or receipt by the customer if the installation has been dispensed with.
Exxas does not guarantee that services or works created or delivered by it can be used uninterrupted and error-free in all combinations desired by the customer, with any data, IT systems and programs. In conclusion, Exxas owes no success.
The warranty is void if the customer changes the hardware or software himself or has it modified by third parties and cannot prove that the reported defects were caused neither in whole or in part by such changes and that the changes do not make it difficult to remedy the defects. In addition, the warranty is void if the customer does not properly fulfill his obligations to cooperate.
6.2 Warranty for third-party products
Exxas cannot provide any warranty and guarantees for products (e.g. hardware and software) from third parties, or the warranty or guarantee is limited to Exxas claiming warranty rights from the third party based on the legal or contractual provisions of the third party (e.g. terms and conditions) at the customer's expense. Exxas assigns all warranty claims against such third parties to the customer.
If the defect in a third-party product (e.g. manufacturer) used results in additional expenses on the part of Exxas (e.g. new installation or reprogramming of a defective device), this additional cost must be borne by the customer, unless it can be passed on by the customer to the third party provider.
In individual cases, Exxas draws the customer's attention to repair and spare parts delivery contracts (e.g. CarePacks) from suppliers and recommends a reasonable option. If the customer rejects this despite the recommendation, he must bear the consequences such as time delays and additional costs himself.
The customer alone is responsible for data backup. Even when orders are placed or contracts are concluded, the customer remains responsible for data backup and recovery. Exxas explicitly does not offer any services or contracts that transfer responsibility for data backup to Exxas. Offers, such as Active Monitoring, are only intended to support data backup control.
7. Industrial property and use rights to software
All property rights to software products are and remain the property of the manufacturer or supplier of the software. The customer acknowledges that, in the event of a violation of terms of use or licensing, the manufacturer or supplier may demand the cancellation of the issued license and withdrawal of the product. If the license terms are not respected, the customer is liable to the manufacturer or supplier of the software.
8. Liability
In the event of breaches of contract, Exxas is liable for proven damage, unless it proves that it is not at fault. Exxas is liable indefinitely for damage caused intentionally and through gross negligence. In the event of slight negligence, Exxas is liable indefinitely for personal injury, for property damage up to the amount of CHF 50,000 per claim event and for financial losses up to a maximum amount of CHF 5000 per claim event. In no event will Exxas be liable for subsequent damages, in particular loss of profit or loss of data or reputation.
Exxas is not liable if the provision of the service is temporarily interrupted, limited in whole or in part or impossible due to force majeure. Force majeure includes in particular natural events of particular intensity (avalanches, floods, landslides, etc.), military events, turmoil, unforeseeable regulatory restrictions, etc. If Exxas is unable to meet its contractual obligations, the performance of the contract or the deadline for the performance of the contract will be postponed in accordance with the event that has occurred. Exxas is not liable for any damage suffered by the customer as a result of delaying the performance of the contract.
9. Data protection and confidentiality
Both parties commit themselves to comply with the applicable legal provisions on data protection and to also impose this obligation on their employees, assistants and involved third parties. Furthermore, both parties commit themselves, their employees, other assistants and third parties involved to keep all documents and information not generally known that they receive or learn in connection with the performance of contracts strictly confidential. The obligation to maintain secrecy exists for an unlimited period of time even after termination of the contractual relationship between the parties.
As computer scientists, Exxas employees are subject to strict professional secrecy and are subject to confidentiality. As part of their work at Exxas, employees learn of particularly sensitive information and gain access to highly confidential data.
This includes, for example, patient data from doctors (medical secrecy), data from clients from lawyers (attorneys' privilege), personal information and customer/financial information from financial institutions (banking secrecy). Exxas has committed all its employees and subcontractors to confidentiality and professional secrecy. Without consent, information and data may not be shared with third parties, including relatives or partners. This confidentiality obligation also applies to the names of customers. The confidentiality obligation continues even when employees no longer work for Exxas. Violation of confidentiality is punishable by law and is punishable by imprisonment of up to three years or a fine for anyone who intentionally discloses secret information or data that he has received or has been given access in his capacity as an employee. Anyone who negligently reveals secrets will be fined up to 250,000 francs.
Should a customer be subject to professional secrecy (e.g. lawyer, doctor, trustee) and/or banking secrecy, the customer is obliged to transfer this confidentiality to his employees. This also applies if the customer stores, processes and stores particularly sensitive information and data.
10. Inspection and notification obligation
The customer is obliged to test delivered hardware, software or software parts for errors immediately upon receipt and to report any identifiable errors to Exxas immediately.
Acceptance of all services and deliveries is considered to have taken place at the latest if the customer has made no complaint within 14 days of installation or handover of the agreed service.
11. Contract duration and amendment
Contracts come into force when they are signed or when accepted or ordered in writing by the customer. If contracts are not limited in time, they are considered to have been concluded for an indefinite period of time with regard to the perpetual debt payment contained therein. Unless otherwise agreed, they can be terminated at the end of each contract year with a notice period of three months. If a minimum term has been agreed, termination is possible at the earliest upon expiry of the minimum term. Amendments to the contract are only valid if they are confirmed in writing by both contracting parties.
The right to extraordinary termination for important reasons is reserved at any time
12. Prohibition of solicitation
Both contracting parties must refrain from anything which could impair the competence and ability to act of the other contracting party. In particular, but not exclusively, the two parties are prohibited from poaching employees from the other party or encouraging them to apply and to employ them as employees or to retain them through another form of cooperation (contract, work contract). Resigned employees from both parties may not be commissioned or employed by the other party for 3 years after termination of the employment relationship. This also applies if the business relationship between the contracting parties has ended.
If this provision is breached, the party breaching the contract owes a contractual penalty in each individual case in the amount of a gross annual salary of the recruited employee, but at least CHF 50,000.00. We reserve the right to claim further damages, in particular the recruitment and training costs arising from recruitment. Payment of the contractual penalty does not release the parties from compliance with the prohibition of solicitation.
13. Further provisions
The settlement of claims of one contracting party against counterclaims from the other party requires a prior express written agreement.
Should individual provisions of the contracts and orders prove to be void or ineffective, this shall not affect the validity of the remaining contracts and orders. In such a case, the parties will adjust the contract or order in such a way that the purpose of the void or ineffective provision is achieved as far as possible.
All contracts and orders between the customer and Exxas are subject exclusively to Swiss law. Only Schlieren is agreed as the place of jurisdiction for any disputes arising from or in connection with the contractual relationship between the parties, a framework agreement and all individual contracts. However, Exxas may also sue the customer at his domicile/place of residence.
