General terms and conditions of business
Terms and Conditions
Terms and Conditions (GTC)
1. General and scope
1.1 These general terms and conditions (GTC) regulate the relationship between Sitewerk AG, CHE-434.650.965, Werkhofstrasse 52, 4500 Solothurn, and the customer. With the use of the service, these conditions are considered accepted. They also apply to all future business relationships, even if they have not been expressly agreed again.
1.2 The General Terms and Conditions of Sitewerk AG apply exclusively. The customer's general terms and conditions are waived, even if Sitewerk AG does not expressly object to them or executes an order without reservation. If the order is placed in deviation from the general terms and conditions of Sitewerk AG, the deviations only apply if they have been acknowledged in writing by Sitewerk AG.
1.3 The services to be provided by Sitewerk AG are specified in a separate contract. An accepted offer is considered a contract.
1.4 Sitewerk AG reserves the right to change or supplement these general terms and conditions. The general terms and conditions apply in the version valid at the time the contract was concluded. Subsequent changes or additions to these general terms and conditions become part of the contract if the customer does not object to the changed provisions within 30 days of becoming aware of them.
2 Obligations of Sitewerk AG
2.1 Sitewerk AG provides the service in the contractually agreed quality and in accordance with the state of the art at the time the contract is concluded.
2.2 The contract concluded between the contracting parties is exclusively decisive for the scope, type and quality of the deliveries and services. Without an express contractual agreement, there is in particular no entitlement to maintenance, support, documentation, source code, training, etc.
2.3 If Sitewerk AG recognizes that the agreed services are incomplete or unsuitable for achieving the purpose pursued by the customer, Sitewerk AG will inform the customer of this circumstance. 2.4 If and as soon as delays are foreseeable, Sitewerk AG will inform the customer.
3 Customer Obligations
3.1 The customer ensures that all cooperation services required for the provision of services owed to Sitewerk AG are provided on time and free of charge for the service provider. The customer is obliged to actively participate in the provision of the services.
3.2 The customer is aware of the features of the service. He has checked that the objects of the contract correspond to his wishes and needs and specifies the requirements for the services. Customer specifications must be in writing.
3.3 The improper fulfillment of duties to cooperate can lead to delays and/or additional work, which is at the expense of the customer.
3.4 The customer assures that any content he has contributed (text, photos, graphics, 3D assets, etc.) complies with the statutory provisions and that he has the necessary rights of use. The customer shall indemnify Sitewerk AG against third-party claims in this regard.
4 Place of Work and Subcontracting
4.1 The work is carried out at Sitewerk AG's headquarters in Solothurn. If the customer does not expressly prohibit it in writing in advance, Sitewerk AG is entitled to use third parties based in Switzerland, the EU or outside the EU as subcontractors. Sitewerk AG is responsible for their careful selection, instruction and monitoring.
5 changes in performance
5.1 The contractual partners can request changes and additions to the agreed service in writing. Sitewerk AG can refuse to implement the change request in writing if the implementation is unreasonable within the scope of its operational capacity or if the changes or extensions cannot be implemented.
5.2 The customer will commission the analysis of a change request. Sitewerk determines the effects on the agreed scope of services within a period to be agreed by the contractual partners and presents them in writing in a supplementary offer. The effort incurred by Sitewerk AG in examining the change must be paid for separately by the customer.
5.3 Changes to the agreed scope of services must be agreed in writing in an addendum to the contract. If the contracting parties do not agree on an adjustment to the contract, Sitewerk will execute the contract without taking the change request into account.
5.4 If a cause for which Sitewerk AG is not responsible affects the fulfillment of the contract, Sitewerk can demand a reasonable postponement of the dates or a change in the scope of services. If the customer is responsible for the cause, Sitewerk can also demand payment for the additional expenses.
6 Performance Time, Delays
6.1 Information on the time of performance and delivery is non-binding unless Sitewerk AG has previously confirmed a delivery date in writing as “binding”. We always reserve the right to supply ourselves; With regard to deliveries and services by third parties, Sitewerk AG is only responsible for ensuring that the order is carried out properly and that the non-delivery is not otherwise due to reasons for which Sitewerk AG is responsible. Partial deliveries are permitted if the parts delivered can be used separately.
6.2 Adherence to the time of performance presupposes that the customer fulfills his cooperation and other contractual obligations in good time and in full. If these requirements are not met, the deadlines will be extended appropriately, but at least by the period of the delay and an appropriate start-up time. This also applies if Sitewerk AG is prevented from performing the service due to other circumstances for which it is not responsible (e.g. labor disputes, force majeure, failure of employees or technical equipment through no fault of Sitewerk AG, non-delivery by suppliers, changes in service). to provide.
6.3 If the customer is responsible for the project disruptions or delays, Sitewerk AG (without prejudice to further claims) will invoice any additional costs that may arise. In addition, Sitewerk AG is entitled to give priority to other orders from third parties (extending the delivery dates) and to extend the delivery time appropriately. Notwithstanding further claims, Sitewerk AG is entitled to demand compensation for the damage incurred, including any additional expenses.
6.4 Sitewerk AG is only in arrears if a reminder is sent. All reminders and deadlines set by the customer must be in writing to be effective. Grace periods must be reasonable with regard to the outstanding services. A possible claim for proven damage caused by delay is in any case limited to the value of the affected (partial) delivery. Consequential damage caused by delay, indirect damage, costs for cover purchases, lost profit and damage from business interruption are expressly excluded. A withdrawal from the contract by the customer as a result of a delay in delivery is also excluded.
7 Use and Ownership Rights
7.1 Unless otherwise agreed, the customer receives a non-exclusive, non-transferable right of use (license) for the services created and contractually defined exclusively by Sitewerk AG or its employees after full payment has been made. If and to the extent that the contractually defined services are intellectual property are from third parties (including open source) or use the intellectual property of third parties (including open source), the license or Contractual terms of the respective third parties. All intellectual property rights to the contractually defined services remain with Sitewerk AG or the respective third party and are not assigned to the customer.
7.2 Subject to the contractual confidentiality obligations, Sitewerk AG is always entitled to copy, reuse, further develop the contractually defined services and the knowledge obtained, allow third parties to use them and/or use and exploit them in any form.
7.3 Sitewerk AG is free to use the know-how developed during the provision of services, provided that the customer's business secrets are protected. 7.4 Sitewerk AG may use the customer name and logo for marketing as soon as a contractual relationship has been established. While maintaining business secrets, Sitewerk AG may use the content of the service provided for marketing immediately after acceptance in accordance with Section 10.
8 Confidentiality, data protection
8.1 The contracting parties undertake to treat as confidential and not to use all information and documents received or known to them from the other contracting party during the execution of the contract, which contain business or trade secrets or are designated as confidential, even after the end of the contract. This applies in particular to the software supplied by Sitewerk AG and copies thereof made by the customer. The contractual partners store and secure this information and documents in such a way that access or knowledge by third parties is excluded.
8.2 Employees of the contractual partners and third parties involved in the execution of the contract who have official access to the information and documents referred to in paragraph 1 must be instructed in writing about their duty of confidentiality and security and committed accordingly. This also applies to the customer's employees with regard to the legal relationships to the software and the customer's authorizations in accordance with Section 7.
8.3 Unless otherwise agreed in writing, the obligation of confidential treatment does not apply to ideas, models, concepts, methods, techniques and other significant know-how or to information that was already known to the other party or that was not related to the contractual relationship would have been accessible.
8.4 The customer is responsible for assessing the legal admissibility of the processing and use of personal data by Sitewerk AG within the framework of the contractual relationship with regard to the provisions of the Federal Data Protection Act (DSG) and other relevant regulations. Sitewerk AG undertakes to comply with the provisions of data protection and to oblige its employees and subcontractors accordingly.
8.5 Information on the customer or project that is used for marketing purposes in accordance with Section 7.4 is excluded from confidentiality.
9 Obligation to inspect and give notice of defects
9.1 As soon as the delivery or service or a part thereof has been provided by Sitewerk AG, the customer must inspect it for recognizable defects. Any defects must be reported in writing immediately, but no later than 10 days after discovery, with a description in accordance with paragraph 9.3.
9.2 This obligation depends on the customer's ability to identify and name defects.
9.3 Each defect must be classified according to Clause 10.5 below and described in such a way that it can be reproduced and contains information about the type of defect, the module in which the defect occurred and the work carried out on the program when the defect occurred became.
9.4 If no recognizable defects in the delivery or service or parts thereof have been reported in writing within this period, these are deemed to have been approved.
10 Inspection and Acceptance of Works
10.1 The customer is obliged to carry out an acceptance procedure (or partial acceptance procedure) with regard to works. As soon as Sitewerk AG has provided the delivery or service (or a separately testable part thereof) in full, the customer is obliged to subject the work to a functional test within ten days.
10.2 Sitewerk AG can request a written declaration of acceptance from the customer for the delivery or services provided (or parts thereof).
10.3 The content of the functional test are the functional tests defined between Sitewerk AG and the customer. The functional test is based on the specifications of the contract or the contractually guaranteed properties.
10.4 Acceptance requires a successful functional test and a successful practical test. First, the contractual partners jointly carry out the functional tests described for the service. The project manager from Sitewerk AG takes part in this. The check should be so thorough that the customer can check the compliance of the services with the contractual specifications in every detail. The function test is logged by Sitewerk AG and signed by the customer.
10.5 The contractual partners agree on the following classification of errors:
10.5.1 Error class 1
The error prevents the use of the work result or essential parts. This error is worth nine points.
10.5.2 Error class 2
The error seriously impedes the use of the work result and there is no workaround or the customer cannot foresee the possibility of eliminating the error. This error is rated with three points.
10.5.3 Error class 3
Other errors. This error is rated with one point.
10.6 The contractual partners should reach agreement on the assignment of a defect to the error classes. Otherwise the higher class applies.
10.7 If errors with a total of more than six points occur during the functional test, the customer can request that the acceptance be aborted and restarted after rectification.
10.8 If the functional test is successful, the practical text begins for a period of three weeks. If defects of the type and quantity described in the paragraphs above occur during the practical test, the practical test will be canceled and restarted after the rectification. If fewer defects are reported during the practical test than described in Section 10.7, the service will be accepted by the customer by means of a written declaration. Errors that do not impede acceptance are dealt with by Sitewerk AG after acceptance within the framework of the warranty
10.9 The declaration of acceptance is deemed to have been submitted if the customer does not complain in writing about defects preventing acceptance within one week of the end of the practical test or expresses his approval in another way, e.g. by not responding to a request for acceptance or by paying the fee
10.10 The rules of this paragraph also apply to partial services. Here, however, the approval does not extend to those properties of the delivery and service that can only be checked in connection with the later deliveries and services.
11.1 Sitewerk AG warrants that the service provided has the contractually assured properties.
11.2 Third party software and/or services are provided by Sitewerk AG on an "as is" basis without any warranty of any kind, either express or implied. In particular, Sitewerk AG is not responsible for ensuring that third-party software and/or services are usable or suitable for a specific purpose. Customer assumes sole risk as to the suitability, quality and performance of the Third Party Software and/or Services. Should the Third Party Software and/or Services prove defective, Customer shall bear the cost of all necessary servicing, repairs and corrections.
11.3 Sitewerk AG excludes any material warranty for services of a contractual nature. By law, there is no liability for success for services of a contractual nature, but Sitewerk AG undertakes to perform the contract carefully and competently in accordance with the current state of the art at the time the contract is concluded.
11.4 The warranty extends exclusively to reproducible errors that the customer has reported in accordance with Section 9.
11.5Sitewerk AG can initially provide a warranty by rectification. The improvement of software services is carried out at Sitewerk AG's option by providing a new program version or by Sitewerk AG showing ways of avoiding the effects of the error. The customer will use the workaround solution until the delivery of the next error-corrected program version. It is not always possible to completely eliminate the software error through subsequent improvement. A new program version or the previous program version that did not contain the error must also be accepted by the customer if this leads to a reasonable adjustment effort for him.
11.6 If the rectification ultimately fails after several attempts despite a reasonable period of grace set in writing, or if Sitewerk AG refuses to rectify the defect, the customer has the right to reduce the remuneration appropriately (withdrawal is excluded). In the case of maintenance contracts, the customer has an extraordinary right of termination instead of a reduction in payment. Clause 12 applies to claims for damages. Other warranty rights are excluded, such as new delivery, contract costs, reimbursement of expenses, etc.