General Terms and Conditions of Business
I. General
1. subject matter of the general terms and conditions
The present General Terms and Conditions (hereinafter: “GTC”) regulate the mutual rights and obligations of QLERQS GmbH, Leutschenstrasse 1, 8807 Freienbach (hereinafter: “Supplier”) on the one hand and the customer of QLERQS (hereinafter: “Customer”) on the other hand.
These GTC shall apply to all contracts between the parties even without express reference to them. Any terms and conditions of business or purchase of the Customer shall be deemed to be waived. Agreements that deviate from these GTC, including this written form clause, must be made in writing, to the exclusion of e-mail.
2. content and validity
The subject matter of the contract is set out in addenda to this contract.
These general terms and conditions apply to all contracts concluded between the parties. Amendments and collateral agreements shall only be effective if the Supplier confirms them in writing.
3. software and know-how
The customer may use the provided software, know-how, data carriers and documentation himself to the extent provided, but may not pass them on to third parties. Ownership thereof and the right to further use shall remain with the Supplier or its licensors, even if the Customer subsequently modifies software programs or know-how records.
Any extension or modification of the software by the customer requires the written consent of the supplier.
The customer may make a maximum of three copies of the software for security and archiving purposes. A larger number of copies or the use for other purposes requires the express consent of the supplier.
The customer must apply the same property right notices to all modifications and copies as to the original.
3 Documentation
The customer is entitled to one copy of the user documentation in the usual version of the supplier. Additional copies or documentation in languages not already available may be invoiced separately by the Supplier. General Terms and Conditions (GTC) 2/6 Deviations in the documentation, namely in descriptions and illustrations, are permissible provided that the documentation fulfills its purpose.
4 Confidentiality
Both parties shall not disclose to third parties any information from the other’s business area which is neither generally accessible nor generally known and shall make every effort to prevent third parties from accessing such information. On the other hand, each party may continue to use in its traditional activity knowledge which it acquires in the course of business.
The parties shall also impose this obligation on their employees and vicarious agents.
5 Duty of the Customer to Inform
The Customer shall inform the Supplier in good time of any special technical requirements and of any statutory, official and other regulations at the place of destination, insofar as they are of significance for the execution and use of the Products.
6. deadlines
Only deadlines guaranteed in writing shall be binding, such as, in particular, stand-by times outside normal working hours, a specific repair time or a response time, etc. Such dates shall be extended
appropriately,
a) if the Supplier does not receive information required for the execution in due time or if the Customer subsequently changes such information;
b) if the Customer is in arrears with the work to be performed by him or is in default with the performance of his contractual obligations, in particular if he fails to comply with payment terms;
c) if obstacles occur which are beyond the control of the Supplier, such as natural events, mobilization, armed conflicts, war, riots, epidemics, accidents, significant operational disruptions, labor disputes, late or defective deliveries and official measures.
The supplier may make partial deliveries.
In the event of delays, the Customer shall set the Supplier a reasonable deadline for subsequent performance. If the supplier fails to perform by the end of this
If the Supplier fails to perform by the expiry of this grace period, the Customer may, provided it declares this within three days, waive the subsequent performance or withdraw from the contract.
If the supplier is demonstrably responsible for the delay, the customer shall be entitled to compensation for the actual damage despite subsequent performance, waiver of performance or withdrawal from the contract, but to a maximum of twenty percent of the value of the delayed delivery. Further claims arising from delays are excluded.
6 Acceptance
Unless a special acceptance procedure has been agreed, the customer shall inspect the products himself and notify any defects in writing. If the customer fails to give notice within four weeks of delivery, all functions shall be deemed to have been fulfilled and the delivery shall be deemed to have been approved.
If defects become apparent later within the warranty period which could not have been discovered even with careful inspection, the customer must notify the supplier of them immediately in writing. Otherwise, the delivery shall be deemed approved despite these defects.
7 Warranty
The Software is provided “as is” without warranty of any kind, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement. In no event shall Supplier, the authors or copyright holders be liable for any claims, damages or other liability, whether in contract, tort or otherwise, arising out of, out of or in connection with the Software or the use or other dealings in the Software.
Supplier shall deliver the Products in good working order and shall exercise the care required for support, maintenance and service. Supplier shall remedy the defects at its option.
8. further liability
The Supplier shall be liable within the scope of its liability insurance for further personal injury and property damage demonstrably caused to the Customer by the Supplier’s fault. Further claims are excluded.
9. prices and terms of payment
Unless otherwise stated, prices are in Swiss francs and do not include value added tax, fees, charges, customs duties, travel expenses, transport, packaging, insurance, installation, commissioning, training and
application support.
Compensation for recurring services shall be paid in advance. They are due for payment net within 10 days of invoicing. Delay in payment shall trigger interest on arrears without special reminder at a rate of four percent above the current discount rate of the Swiss National Bank on the due date.
The offsetting of claims by the customer is excluded.
10. special conditions at the customer
The Supplier can only provide its services if, depending on the agreed services, the Customer takes the necessary measures, in particular:
a) provides the necessary access to data as well as the necessary equipment connections, according to the specifications of the Supplier;
b) notifies the Supplier in good time of any special technical requirements and of the statutory, official and other regulations at the place of destination, insofar as they are of significance for the performance in conformity with the contract.
performance in conformity with the contract;
c) designates a competent employee to be available as a contact person;
d) uses the software and equipment with due care and in accordance with the Supplier’s instructions, does not subject them to above-average stress, meets the requirements for the environment and carries out the usual cleaning work;
e) grants the Supplier free access to the equipment, data carriers and documentation and makes the necessary premises available to him;
f) provides the necessary communication systems so that the Supplier can make the clarifications and intervene directly in the system during remote service, for example by installing a modem and the necessary communication software;
The Supplier may additionally charge for expenses incurred by the Customer due to inadequate prerequisites.
11. reaction and stand-by times
If a specific response time has been expressly agreed between the Supplier and the Customer, the Supplier undertakes to commence its work within the agreed number of hours after the request for performance in conformity with the contract. For services provided at the Customer’s premises, the start of the journey shall be deemed to be the start of work.
The services in conformity with the contract shall be performed during the Supplier’s usual working hours, but not during the Supplier’s company vacations or local holidays.
12 Duration of the legal relationship
Unless otherwise agreed, a legal relationship concerning hardware maintenance or software support may be terminated at any time by giving three months’ notice. Purchase contracts shall be deemed to have been fulfilled when both parties have performed in accordance with the contract.
13. export
The customer is responsible for compliance with domestic and foreign export regulations. The re-export of certain products of foreign origin is only permitted with a permit from the Swiss Federal Department of Economic Affairs in accordance with a commitment made to the Department for Import and Export (arms export). The supplier shall expressly designate the products in question in quotations and invoices, whereby the obligation shall pass to the customer.
14 Resale
Unless otherwise agreed by the parties or due to the nature of the business, the Customer may resell the Products modified or unmodified.
If the customer resells the products, he must ensure that all obligations arising from software licenses, from confidentiality and from any reservations of authorization for re-export are transferred to the respective purchasers.
IV. Support, Service and Maintenance of Software
1. scope and execution of support
The scope and execution of the support service shall be governed by the agreement between the parties.
In this context, the following shall apply
a) Application advice: advice on the correct application of the Software, namely on its proper use and deployment.
b) Customer training: Training on the correct project-specific use of the Software.
c) Troubleshooting: Program modifications aimed at eliminating bugs or weaknesses in the software that prevent proper operation; no modifications beyond the original requirements.
d) Modifications: Program changes with the goal of eliminating non-operational bugs or weaknesses in the software; no changes beyond the original requirements.
e) Subsequent delivery of modules: Subsequent delivery of an existing part matching the previous software package; without additional engineering services.
f) Correction of data loss or data errors: Restoration of a lost or correction of an erroneous data stock, as far as this is possible due to the data backups for which the customer is responsible.
g) Supply of new releases: unsolicited supply of existing new software versions and the associated documentation on the appropriate data carriers; without additional engineering services.
h) Enhancements: Customer-specific program changes; with appropriate engineering services and beyond original requirements.
i) Integration: Customer-specific introduction of new, additional or third-party standard software; with corresponding engineering services. Customer information: Written orientation about software updates as well as programming instructions.
2. type of service provision
The support services shall be provided by the Supplier at the Customer’s premises or at the premises of the Supplier’s competent technical service, depending on their nature, at the Supplier’s option, if any,
a) At its own premises
b) At the Customer’s premises;
c) with telecommunication as an exchange of information between the Supplier’s and the Customer’s technical staff;
d) with remote service as remote diagnosis and remote intervention by means of direct information transfer between the Supplier’s system and the Customer’s system;
e) with mail and parcel delivery.
V. Data protection
1. the customer authorizes the supplier and agrees to process, store and evaluate the data about the customer received in connection with the business relationship in accordance with the data protection laws.
2. the supplier stores and uses the personal data of the customer for the processing of orders and possible complaints. Furthermore, the supplier is entitled to use the e-mail address of the customer for information letters regarding the orders and for e-mail advertising.
The supplier does not pass on any personal customer data to third parties. Excluded from this are service partners who require the transmission of data for order processing. In these cases, however, the scope of the transmitted data is limited to the minimum necessary.
4. the customer has a right to information as well as a right to correction, blocking and deletion of his stored data. Data for billing and accounting purposes are excluded from deletion or termination.
VI Place of performance, choice of law and place of jurisdiction
(1) Unless a special place of performance has been agreed upon by the parties or is evident from the nature of the transaction, delivery shall be deemed to be the provision of the products at the Supplier’s place of business.
2. the place of jurisdiction for all contractual claims and claims directly or indirectly related to the concluded contract shall be the supplier’s registered office.
(3) This legal relationship shall be governed exclusively by Swiss law. Last update: February 2021