General terms and conditions
These General Terms and Conditions (GTC) govern the conclusion, content and execution of contracts between customers (hereinafter referred to as "Customers") and bkoSoft AG, for the maintenance of hardware and the provision of other IT services.
The GTC are an integral part of all offers and contracts between the customer and bkoSoft AG. Subsidiary agreements, amendments or supplements to the GTC shall only become effective upon written confirmation.
Invoices of bkoSoft AG for services/deliveries from all contractual relationships are to be paid net without discount within 14 days after invoicing.
Non-compliance with the payment date triggers default without an explicit reminder and bkoSoft AG is entitled to 8% interest on arrears as well as compensation for all reminder, collection, lawyer and court costs as well as further damages.
The offer by bkoSoft AG including demonstrations offered shall be free of charge.
Unless otherwise specified in the offer, bkoSoft AG shall remain bound by the offer for 30 days from the date of issue of the offer.
The contract is concluded by signing a separate contract or by written acceptance of the offer.
If subsequent order/contract changes involve additional costs for bkoSoft AG, these shall be borne by the customer in accordance with the then valid rates of bkoSoft AG.
The specification of delivery times and dates is always subject to change for bkoSoft AG. A delivery period begins at the earliest with the order confirmation of bkoSoft AG, but never before clarification of all technical details. If no specific delivery date is expressly agreed upon, bkoSoft AG will normally deliver in consultation with the customer.
Operational disruptions, in particular non-delivery or delayed delivery by contractual partners of bkoSoft AG and events of force majeure shall entitle bkoSoft AG to extend the delivery periods and/or cancel the delivery obligation to the exclusion of claims for damages by the customer.
The shipment of products by bkoSoft AG is at the expense and risk of the customer. Damages must be reported to the carrier upon receipt of the goods. Complaints regarding the execution and quantity of the delivery must be made in writing to bkoSoft AG within 5 days after receipt of the goods, otherwise the delivery is considered approved.
Until full payment of the purchase price, products remain the property of bkoSoft AG and may not be pledged or assigned as security.
All prices in all offers and contracts between the customer and bkoSoft AG are net, without discount in Swiss currency.
bkoSoft AG provides the delivery at fixed prices. The remuneration covers all services which are necessary for the proper fulfillment of the contract. The remuneration covers in particular the installation costs, the costs for a first instruction, the expenses, possible license fees, the packaging, transport and unloading costs.
bkoSoft AG is entitled to demand advance payment or other security at its own discretion.
The warranty period for the products delivered by bkoSoft AG is based on the warranty period defined by the manufacturer. It amounts to a maximum of 6 months from the date of delivery. Parts which become demonstrably defective or unusable within the warranty period as a result of poor material, faulty design or poor workmanship will be repaired or replaced by bkoSoft AG free of charge. The warranty service includes the necessary parts without the working time. Any further claim against bkoSoft AG, especially compensation or withdrawal from the contract, is excluded. The warranty does not cover damages resulting from disregard of operating instructions or damages resulting from other causes not attributable to bkoSoft AG.
A program error that is subject to warranty is only present under the following conditions:
The customer is obliged to notify bkoSoft AG immediately of any defects occurring during the warranty period. Any liability of bkoSoft AG for damages resulting from delayed notification of defects is excluded.
Apart from the warranty services described above, any further warranty obligations of bkoSoft AG are excluded in their entirety.
Maintenance of hardware refers only to the parts supplied by bkoSoft AG and includes their upkeep (preventive maintenance) to maintain operational efficiency and repair (elimination of faults and errors to restore operational efficiency) by repairing and replacing defective parts and installing technical improvements.
Maintenance services do not include the repair of defects caused by incorrect manipulation, external influences, effects of equipment not supplied by bkoSoft AG, improper handling and the replacement of wear and/or consumables. Such services will be charged additionally at the current rates of bkoSoft AG.
The maintenance of software includes the correction of errors, the adaptation and the further development of the programs (new releases by the manufacturer).
Maintenance services for the maintenance of software do not include functional extensions of the software. Such services will be charged additionally at the current rates of bkoSoft AG.
Upon request, bkoSoft AG shall participate in the search for the cause of the malfunction, even if the malfunction occurs when several systems or components interact. If bkoSoft AG proves that the malfunction was not caused by the hardware or maintained software, these services will be charged at the current rates of bkoSoft AG.
Upon request and against separate payment, bkoSoft AG shall also remedy malfunctions which are due to circumstances for which the customer or third parties are responsible.
During the maintenance readiness and service readiness period, bkoSoft AG shall accept fault reports and provide its services for maintenance and servicing as agreed in the maintenance contract and servicing contract. bkoSoft AG shall start the repair as soon as possible, but at the latest within the time agreed in the maintenance contract or the maintenance agreement. Intervention time is the time between the call of the customer to the fault reporting center of bkoSoft AG and the expert intervention by remote maintenance or on site.
bkoSoft AG shall ensure that the relevant documentation is updated as necessary.
bkoSoft AG shall keep a maintenance and service log as far as provided for and shall make it available to the customer upon request. It contains the information which is essential for further operation.
If the maintenance is paid for on a time and material basis, the customer will receive a report. This report shall state the date, type and duration of the work. This report is countersigned by the customer.
bkoSoft AG shall provide its services at the maintenance and expense rates or flat rates agreed in the maintenance contract and maintenance agreement.
The remuneration covers all services that are necessary for the proper fulfillment of the contract. Expenses and incidental costs of bkoSoft AG will be charged additionally.
Taxes and duties that are levied on the conclusion or fulfillment of this contract, or their increase, shall be borne by the customer.
bkoSoft AG guarantees careful performance of its services. The warranty does not apply insofar as the customer is at fault. If maintenance, care and upkeep are unsuccessful, the customer may initially only demand that the defect be remedied free of charge. bkoSoft AG shall remedy the defect within a reasonable period of time and shall bear all costs arising therefrom. If bkoSoft AG has not or not successfully carried out the requested rectification, the customer may, after a one-time written warning, have the corresponding measures carried out by a qualified third party company. The costs shall be borne equally by bkoSoft AG and the customer. The rights to claim for defects (according to XI.1 to XI.3) shall expire within one year from the date of performance of the maintenance or servicing service. Defects must be reported immediately after discovery. For fraudulently concealed defects, the defect rights can be asserted for ten years after execution.
If the maintenance contract has been concluded for an indefinite period, it may be terminated at any time subject to existing maintenance obligations arising from contracts for the procurement of hardware and software. Subject to an agreement on the adjustment of the remuneration, the termination may also extend only to individual parts of the contract. The period of notice shall be 3 months for bkoSoft AG and 3 months for the Purchaser. Prepaid remuneration shall be refunded pro rata temporis.
The contracting parties shall treat as confidential all facts that are neither public knowledge nor generally accessible.
In case of doubt, facts are to be treated confidentially and there is a mutual obligation to consult.
This obligation to maintain secrecy also exists prior to the conclusion of the contract and also after the termination of the contractual relationship.
If one of the contracting parties violates the aforementioned duty of confidentiality, it shall owe the other party a contractual penalty unless it proves that it is not at fault. This penalty shall amount to one year's remuneration per case at the time of the breach, but not more than CHF 50,000 per case. The payment of the contractual penalty does not release from the obligation to maintain secrecy.
bkoSoft AG shall be liable for any damage caused by it or by a third party commissioned by it arising from the contractual relationship, unless it proves that neither it nor the commissioned third party is at fault, whereby any liability for slight negligence is excluded. In any case, liability for any kind of indirect damage, such as loss of profit, etc., is excluded. bkoSoft AG shall be liable up to the amount of one year's remuneration of the customer, but not exceeding CHF 100'000. Excluded from this limitation is the liability for personal injury and property damage. Furthermore, any liability is excluded to the extent permitted by law.
Rights and obligations arising from the contractual relationship as well as the contract as a whole may not be assigned, transferred or pledged, in whole or in part, to third parties without the prior written consent of the contractual partner. Such consent shall not be withheld without cause.
With your order you accept these terms and conditions. The place of jurisdiction is Appenzell, Switzerland.
Appenzell, 01 January 2019