Terms and Conditions (T&C) ELIADA GMBH
1. Scope of application and subject matter of the contract
1.1 These General Terms and Conditions (hereinafter referred to as GTC) apply to all services provided by ELIADA GmbH (hereinafter referred to as ELIADA) to the Customer. ELIADA and the Customer are jointly referred to as the Parties.
1.2 General Terms and Conditions of the Customer shall not apply even if the Customer refers to them in a standard document (e.g. an order document) or otherwise in connection with the request for a service.
1.3 ELIADA reserves the right to unilaterally amend the GTC at any time. An amendment shall only have an effect on current services with the consent of the customer. 2.
2 Services of ELIADA
2.1 ELIADA offers consulting and development services in the areas of information technology (IT) and project management for companies. The type, content and design of ELIADA’s services are set out in ELIADA’s current service descriptions or quotations.
2.2 ELIADA shall at all times perform its services carefully and professionally to the best of its knowledge and ability and shall fulfil its contractual obligations in accordance with the contractual service description.
2.3 ELIADA shall continuously implement suggestions for improvement reported by the Client into the development process for the Solution.
3. Involvement of third parties
3.1 ELIADA may engage third parties (e.g. specialists, auxiliary persons, subcontractors) to fulfil its obligations.
3.2 If the customer proposes the involvement of a third party, if the customer agrees in advance to the involvement of a third party proposed by ELIADA or if the customer commissions the third party directly, ELIADA shall not be liable for the results of the third party’s work.
4. Delay in the performance of services
4.1 Performance obligations of ELIADA shall not be deemed to be expiry date transactions. Deadlines shall be deemed to have been met upon provision of the service. The respective notice of readiness shall be decisive.
4.2 If ELIADA fails to meet a deadline expressly designated as giving rise to default for reasons for which ELIADA is responsible or if ELIADA is in default following a reminder, the customer shall grant ELIADA a reasonable grace period of at least 30 days.
4.3 If ELIADA does not fulfil its obligation to perform within the grace period, the customer may withdraw from the call for services if it declares its withdrawal within 10 days of the expiry of the second grace period and if ELIADA is in default with regard to the entire scope of services or with regard to essential partial services without which the service already provided is useless for the customer.
4.4 With respect to Services (or parts thereof) which have already been substantially performed in accordance with the Contract and can be used as such by the Customer in an objectively reasonable manner, the Customer may not declare a withdrawal. Such services shall be fully remunerated.
4.5 If the customer does not declare the withdrawal within the period of 10 days or if section 4.4 applies, ELIADA shall continue to be entitled and obliged to provide the outstanding service. The customer may claim damages for the loss incurred by him as a result of the delay.
4.6 This clause 4 conclusively regulates the consequences of default for services rendered by ELIADA.
5 Warranty of quality
5.1 ELIADA warrants to perform its services carefully, conscientiously and in accordance with the current state of the art of technique.
5.2 Any further warranty is excluded.
6. Legal warranty
6.1 ELIADA warrants that its Services do not infringe any Swiss intellectual property rights of third parties.
6.2 ELIADA shall defend any claims of third parties for infringement of Swiss intellectual property rights of third parties at its own expense. The customer shall notify ELIADA of such claims in writing and without delay and shall leave to ELIADA the exclusive conduct of any litigation and measures for the judicial or extra-judicial settlement of the dispute.
6.3 The customer undertakes to actively support ELIADA in the defence against claims of third parties and not to acknowledge claims of third parties either in or out of court without the consent of ELIADA. Under these conditions ELIADA shall bear the costs and damages imposed on the customer.
6.4 If an action is brought for infringement of industrial property rights, ELIADA may, at its option, procure for the customer the right to use the performance free of any liability for infringement of industrial property rights or to replace the performance with another performance which also substantially complies with the contractual requirements.
6.5 If the customer acquires third party software or other products from ELIADA, the warranty of title shall be governed by the licence terms of the third party.
6.6 ELIADA warrants that it has ensured proper licensing for the customer. ELIADA warrants that it is entitled to transfer such licences.
6.7 If Customer purchases Products and/or Third Party Software directly and not through ELIADA, Customer shall be solely responsible therefor from the outset.
6.8 This clause 6 conclusively regulates the legal warranty claims of the customer.
7.1 If ELIADA causes a breach of contract by its own conduct or omission, ELIADA shall be liable for the proven damage, unless it proves that it is not at fault; in addition, the following rules of this Section 7 shall apply.
7.2 ELIADA shall be liable for damage caused intentionally or by gross negligence to the full extent of the damage.
7.3 In the event of slight negligence ELIADA shall be liable for personal injury without limitation, for property damage and for financial loss in total not exceeding the amount of the remuneration paid to ELIADA.
7.4 Within the scope of application of clause 7.3, any liability of ELIADA is excluded for:
– Instructions given by the customer which the customer insists on despite advice from ELIADA;
– Instructions given by the customer directly to third parties;
– Loss of profit;
– Consequential damages;
– Consequences of data loss (e.g. costs of data recovery);
– Costs incurred to avert reputational damage;
– For services and deliveries by third parties who have a direct contractual relationship with the customer;
– For financial losses resulting from the exceeding of cost estimates or the failure to meet deadlines and/or dates.
7.5 Further liability provisions or liability provisions deviating from Clause 7 at the expense of ELIADA shall not apply.
7.6 The customer shall immediately notify ELIADA in writing of any complaints which may lead to the assertion of liability claims against ELIADA.
8.1 Unless otherwise agreed, all amounts for remuneration to ELIADA shall be in CHF exclusive of value added tax and any other duties.
8.2 Remuneration shall be payable in accordance with the agreed terms of payment or the agreed payment schedule. In the absence of such a payment plan, one-off payments shall be made in accordance with the invoice issued, recurring payments shall be made monthly or quarterly in advance.
8.3 The customer shall be in default without further reminder after expiry of the payment period. An interest rate of 5% p.a. on arrears shall be deemed to have been agreed. If the customer is in default with a payment or if ELIADA has reasonable grounds to believe that the customer will not fulfil its obligations falling due within the next two months, ELIADA may make the provision of further services dependent on the full payment of outstanding invoices and, at its discretion, also on advance payments or other securities.
8.4 Services to the Customer for which the prices have not been specifically agreed shall be invoiced according to effective expenditure at ELIADA’s standard rates applicable from time to time. ELIADA shall inform the customer of the applicable rates either on its own initiative or at the customer’s request. ELIADA’s pricing conditions are calculated on the basis that the place of performance is the registered office of ELIADA.
8.5 Unless otherwise agreed, travel, board and lodging expenses shall be borne by the customer and shall be shown accordingly in the invoices.
9 Invoicing and Payment
9.1 Unless otherwise stated, ELIADA shall invoice the Customer for any amounts due. Invoices are payable within 30 days net from date of invoice.
9.2 For environmental reasons ELIADA does not send paper invoices. The customer will receive the invoice as a PDF file via e-mail. The customer shall inform ELIADA of the recipients of the invoice in good time.
10. Property and industrial property rights
10.1 ELIADA shall retain all property rights in the services provided by ELIADA, in particular copyrights, patent rights and design rights.
10.2 If the call for services includes the transfer of source code to the customer, this transfer shall only take place after full payment for all services provided by ELIADA.
10.3 ELIADA shall be entitled to use the Services rendered for the Customer also in the context of other Customer projects, provided that this does not violate justified confidentiality interests of the Customer. ELIADA shall remove any reference to the customer or the customer’s business before further use of services.
10.4 The Customer shall receive a right of use to third-party software to the extent of the manufacturer’s licence (either as a sub-licence or as a direct relationship according to separate information from ELIADA). The Customer acknowledges to be bound by the terms and conditions of use and licence of the third party. 11.
11. Rights of use of the customer
11.1 Upon full payment of the agreed remuneration by the customer and subject to any provision to the contrary in the service description or the offer, the customer shall have the unrestricted and unlimited right to use the customer-specific services provided by ELIADA (in particular concepts, applications including configuration services and design elements) including interfaces to standard components in accordance with the contract. Unless otherwise agreed, the right to use the services provided by ELIADA also includes their reproduction for internal use by the customer as well as their further development. Any further use is not permitted.
11.2 The customer’s right of use is not transferable to third parties. However, it shall also apply to legal successors of the Customer irrespective of whether the legal succession comes about through merger by way of combination with a third party to form a new company or through absorption into a third party company.
12 Change Management
12.1 If, in the opinion of the Customer or ELIADA, changes to the agreed service specification are required, the party identifying the need for change shall submit a Change Request to the other party.
12.2 If the Change Request originates from ELIADA, the Customer shall declare within 10 days of receipt whether it wishes to receive a quotation for the implementation of the relevant Change. Within 10 days of receipt of the Customer’s expression of interest (and also within 10 days of receipt of a Change Request from the Customer), ELIADA shall provide the Customer with a quotation for the implementation of such Change Request.
12.3 The offer shall contain information on:
– Type and scope of the changes to the Services,
– Impact on the quality of the Services,
– Time schedule for implementation, impact on other deadlines,
– Costs (one-off/recurring),
– Risk/impact of implementation or rejection.
12.4 The customer shall decide on the execution of the change request within 10 days of receipt of the offer. In the case of urgent Change Requests, the aforementioned deadlines may be shortened by mutual agreement.
12.5 Until the decision on the Change Request ELIADA shall provide the Services in accordance with the existing rules.
13.1 All documents, data and other information of one party which the other party receives or has received in connection with the contract shall be treated confidentially by the other party. The other party shall not make them available or otherwise disclose them to any third party without the prior written consent of the entitled party.
13.2 The parties shall transfer the duty of confidentiality to their employees, subcontractors, sub-suppliers and other third parties involved.
13.3 The confidentiality obligations shall remain in force even after termination of the contract for as long as the disclosing party has a justified interest in doing so.
Rights and obligations under the contract may only be assigned or transferred to another company with the consent of the other party.
15 Exclusion of set-off
Offsetting of claims is only permitted with the written consent of the other party.
16 Applicable law and place of jurisdiction
16.1 Swiss law shall apply exclusively to the exclusion of the provisions of international private law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (SR 0.221.211.1) is excluded.
16.2 The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship established under these GTC is Binningen.