Serv24 GmbH General Terms & Conditions
By means of the terms and conditions below, Serv24 GmbH, hereinafter referred to as “Serv24”, and its contract partner, hereinafter referred to as the “Customer”, govern their legal relations, subject to individual contractual provisions. The General Terms & Conditions constitute a part of the contract coming into existence between the parties (the “Contract”).
Area of Regulation
Terms and conditions of or deviating counter confirmations by the Customer are not binding for Serv24, even if they are not expressly objected to; for their legal validity they require Serv24’s express written acknowledgement. The written order confirmation by Serv24 is exclusively authoritative for the determination of the contract content.
These Terms & Conditions also apply to all consequential transactions between the parties.
Price and Payment
The prices are valid ex works, excluding packaging plus VAT in the respectively valid statutory amount. Packaging costs are invoiced for at 2% of the order value.
Payments are to be made immediately and without any discount free to Serv24 point of payment. If partial deliveries are made, then the partial purchase price is due after each delivery.
Serv24 is entitled to demand an advance payment from the Customer in the amount of one third of the total order value upon the order being placed, one third upon delivery and one third upon putting into operation.
In the event of default of payment, Serv24 is entitled to levy a default interest rate in the amount of 6%. In addition, Serv24 can levy a processing fee in the amount of CHF 20.- per reminder. The bringing of a claim for more extensive loss remains unaffected.
The Customer can only initiate counter-claims against Serv24’s claims if the former are legally-valid and non-appealable or if they have been expressly acknowledged by Serv24. The same correspondingly applies regarding the Customer invoking a right of retention.
All payments are to be made in Swiss Francs.
Delivery Conditions, Reservation Not to Supply
Serv24 is entitled to make partial deliveries and render partial services.
The basis of the quoted estimated delivery dates are the delivery times specified by Serv24.
If Serv24 does not receive deliveries or services in a timely manner from the manufacturer which are necessary in order to fulfil the obligations arising out of this Contract which are owed to the Customer, despite timely and correct ordering of those deliveries or services, and such failure is not attributable to Serv24, then Serv24 has the right to release itself from its performance obligation. In such case, Serv24 will inform the Customer without undue delay of the non-availability and reimburse the Customer for the pertinent part of any amounts which have already been paid.
If Serv24 does not make use of the right to rescind in a case named in number 3.3 above, Serv24 shall not be in delay regarding the Customer if Serv24 endeavours in a timely manner to obtain an alternative supply of the delivery or service necessary and not received in a timely manner.
If no agreement to the contrary has been entered into through individual contract, the installation of the delivery object does not constitute an object of Serv24’s delivery obligation. The Customer will instruct Serv24 with the installation in such case.
The calculation takes place in accordance with time and expenditure on the basis of the respectively-valid Serv24 price lists for services and material expenditure.
The Customer is obliged to confirm in writing the acceptance of the installation service. If the Customer does not submit the acceptance confirmation or if the acceptance cannot be executed by Serv24 due to reasons which are attributable to the Customer, the acceptance shall be deemed to have occurred as of the date of the acceptance offer, unless the installation service does not correspond to the contractual agreements.
Retention of Title
The delivery objects remain in the ownership of Serv24 until fulfilment of all of the –including future – claims to which Serv24 is entitled against the Customer arising out of the business relationship. In the event of a processing or combination of the goods subject to the retention of title in the sense of “Art. 715 Abs. 1 ZGB” with other items, which do not belong to Serv24, Serv24 will be entitled to a co- ownership share in the new item in the amount of the price – including VAT – invoiced to the Customer. If the value of all security rights to which Serv24 is entitled exceeds the amount of all of the secured claims by more than 20%, then at the wish of the Customer, Serv24 will release a corresponding part of the security rights at its own discretion.
During the existence of the retention of title, the Customer is forbidden from pledging or a transfer by way of security, and onward sale is only permitted to onward sellers in the usual course of business in exchange for cash payment or subject to retention of title.
If the Customer sells the delivery objects on, then it hereby assigns its future claims arising out of the onward sale against its customer with all ancillary rights for the purpose of security, without this requiring any subsequent special declarations. In the event that the Customer’s claims arising out of the onward sale are put into a current account, the Customer hereby also assigns its claims out of the current account against its customers to Serv24. Serv24 hereby expressly declares that this assignment agreement does not constitute permission by Serv24 regarding invalid disposal by an unauthorised.
In the event of culpable breach of fundamental contractual obligations by the Customer, in particular default of payment, the Customer will be obliged upon first demand by Serv24 to return the goods subject to the retention of title. The invoking of this return claim by Serv24 shall not be deemed as rescission of contract unless Serv24 has expressly declared this. After prior threat, Serv24 is entitled to utilise the goods subject to the retention of title and taken back, and to satisfy itself subject to setting off their proceeds against the open claims.
In the event of levies of execution, seizures or other acts of disposal or encroachments by third parties, including through compulsory measures with regard to the real properties on which the delivery objects are located, the Customer is obliged to inform Serv24 without undue delay. All replacement claims which might accrue to the Customer through the access by third parties to the goods subject to the retention of title are hereby assigned to Serv24. The Customer bears the costs of all measures concerning the elimination of encroachments of this kind.
Transfer of Risk
The risk is transferred to the Customer at the latest upon dispatch of the parts being delivered from the dispatch location. This also applies even if partial deliveries are being made or if Serv24 has taken over other services (e.g. dispatch costs, delivery, installation).
Claims Arising from Defects
After the arrival of the purchase item, the Customer is obliged to examine it without undue delay for transport damage, defects and condition. It is obliged to complain to Serv24 in writing without undue delay regarding obvious defects and transport damage.
If there is a defect in the purchase item which is attributable to Serv24, Serv24 is obliged to effect subsequent performance unless an entitlement to refusal of that subsequent performance arises under the statutory provisions. In the context of subsequent performance, Serv24 is also entitled – according to its discretion – to remove the defect (rectification of defects) or to deliver a new purchase item. Provided that Serv24 fulfils its obligation regarding subsequent performance, the Customer does not have the right to demand reduction of the purchase price or to declare rescission of the Contract. If the subsequent performance fails, in the event of a rectification of defects, the subsequent performance shall be deemed to be unsuccessful only after Serv24’s second unsuccessful attempt, or, if Serv24 refuses to effect subsequent performance, then the Customer is entitled to demand – according to its choice –reduction of the purchase price or the declare rescission of the Contract.
If the defective item is software which was coded or configured according to particular specifications of the Customer and which exhibits and increased degree of complexity, the Customer grants Serv24 at least two further attempts at rectification of defects beyond those attempts detailed in number 7.2 above.
Serv24 is entitled to the possibility provided for in numbers 7.2 and 7.3 respectively regarding rectification of defects, including the respective number of attempts, separately for each one of the defects reported by the Customer.
Serv24 has to bear all of the expenditure necessary for the purpose of the subsequent performance, in particular transport, home-to-office, work and material costs, insofar as these do not increase by virtue of the fact that the purchase item is taken to a location other than the place of performance. The Customer, however, will make available for no charge the technical equipment (including telephone connections) at its disposal.
If the Customer has made use of its rescission right and if the Contract affected by the rescission also encompassed the delivery of Software, then the Customer is obliged to return to Serv24 the respective data carrier with the software as well as the accompanying documentation, and to destroy all potential copies.
The warranty period amounts to twelve months. The period of limitations commences upon arrival of the purchase item at the Customer or acceptance of the purchase item by the Customer, as applicable. In the case of the delivery of software, the claims arising from defects relate to the first delivery of the software to the Customer. If the Customer is granted further or other usage rights in the software by Serv24 (e.g. additional workstation licences), then the guarantee period will neither be prolonged nor will it start anew thereby.
If in the framework of its claims arising from defects the Customer is able to make claims for damages, these are subject to the limitations of liability pursuant to number 8 below. Otherwise, liability to pay compensation is hereby excluded.
Serv24 is liable regardless of the following limitations of liability in an unrestricted manner pursuant to the statutory provisions for loss of life, personal injury or damage to health which is due to an intentional or grossly negligent breach of duty of Serv24 itself, its legal representatives or vicarious agents for loss or damage, as well as for all damage or loss which is due to intentional or grossly negligent breaches of contract, as well as bad faith. If Serv24 has given a condition and/or durability guarantee with regard to the contractual object or parts thereof, Serv24 is also liable in the framework of that guarantee. For damage or loss which is due to the lack of the guaranteed condition or durability, but does not arise directly in the contractual object, however, Serv24 is only liable if the risk of such damage or loss is obviously included in the condition and durability guarantee.
Serv24 is also liable for damage or loss which is due to intentional or grossly negligent behaviour by its legal representatives, executive employees and simple vicarious agents.
Serv24 is also liable for damage or loss which is caused through simple negligence, insofar as the negligence pertains to the breach of such contractual obligations whose compliance is of particular importance for the achievement of the contractual purpose (cardinal obligations). At all events, in cases of negligent behaviour Serv24 is liable only to the extent that the damage or loss is foreseeable and typically associated with the Contract. In the case of minor negligent breaches of non-fundamental contractual obligations by simple vicarious agents, Serv24 will not be liable. The limitations of liability contained in sentences 8.1 – 8.3 above also apply insofar as Serv24’s liability for its legal representatives, executive employees and other vicarious agents is affected.
Insofar as Serv24’s liability is excluded or limited, this also applies for the personal liability of Serv24’s employees, workers, representatives and vicarious agents.
The liability for loss of data is limited to the typical restoration effort which would have occurred in the case of regular and risk-appropriate production of backup copies.
Serv24 is not responsible for the checking of the networks and devices provided by the Customer for electro-magnetic compatibility pursuant to EMV norms and does not assume any costs which result from potential breaches of the EMV norms.
For damage or loss which is caused through misuse of the products which are contractual objects Serv24 is only liable if intentional or grossly negligent behaviour on the part of Serv24 is proven.
If the Customer suffers loss due to the culpable exceeding of a fixed agreed delivery date or hand-date by Serv24, then in the case of only simple negligence it is entitled – subject to exclusion of further claims – to demand flat-rate compensation. The compensation amounts to 0.5% for every full week of the delay; however, in total not more than 5% of the value of the delivery or partial delivery in delay. This limitation does not apply in the case of the intentional or grossly negligent causing of the loss by Serv24.
If in the framework of this Contract or otherwise, computer programmes as well as the documentation belonging thereto (herein after referred to as “Software”) are handed over to the Customer by Serv24, the following provisions, which take precedence over all conditions potentially contained inside the packaging unless the latter contain more stringent restrictions, apply:
Serv24 thereby grants the Customer a non-exclusive and temporally-unlimited licence to use the Software handed over to the Customer on the hardware delivered by Serv24 or the hardware for which the Software was delivered, in accordance with the following provisions. The Customer is not entitled to configure the Software for more than the number of objects for which the Customer has purchased a licence. The term “objects” in the above sense encompasses, inter alia, installations, users, connections, agents and ports.
In addition, the rights and obligations of the Customer with regard to the Software), insofar as nothing to the contrary is stipulated in this number 9, without separate, express written permission, the Customer is particularly forbidden from doing the following:
the permanent or temporary copying of the Software, with the exception of backup copies;
the translation of, editing of, the arrangement of and other changes to the Software, as well as the copying of the results produced;
any form of distribution of the Software by lease, sub-licensing or in another form;
Reprogramming, disassembling or decompiling of the Software, insofar as it is not expressly allowed through statutory provisions. Serv24 has the right to monitor the installation of the Software by remote monitoring or at the business premises of the Customer in order to check that the installation and configuration of the Software correspond to the provisions of these licence conditions. Inspections at the Customer’s business premises take place after timely prior announcement and consultation and agreement with the Customer. The Customer supports Serv24 in the inspection and permits Serv24 in particular to access its business premises as well as the corresponding computer systems.
The Customer is only entitled to sell the Software products to a third party when relinquishing its own use. With the sale, the Customer’s usage right is transferred to the third party. All of the copies supplied to the Customer and/or produced by it are to be handed over to the third party or to be deleted. The Customer is obliged to disclose the third party’s name and the address to Serv24. The recipient may not be granted a more extensive usage right than that stipulated here.
Serv24 holds the Customer harmless from any third party claims which arise out of or due to a breach of trademark rights and copyright through the normal use or possession of the Software, provided that the Customer
notifies Serv24 in writing without undue delay of a breach known to it or alleged to it;
does not take any kind of prejudicial actions or give any declarations without the prior written consent of Serv24;
Enables Serv24 to conduct and/or to end all of the negotiations and proceedings. In addition, the parties are obliged to support each other to a reasonable extent in the defence against claims made by third parties.
The indemnity obligation contained in number 9.4 does not apply to cases where Serv24 did not know of the existence of trademark rights or copyright of third parties when entering into the Contract, and this lack of knowledge is not due to fault on the part of Serv24, either. The indemnity obligation is also excluded if a breach of third-party rights is to be attributed to the fact that the Customer has used the Software in association with equipment or material not approved or delivered by Serv24, or if the Customer has made changes to the Software without Serv24’s prior written consent.
In the event of a breach or alleged breach of third-party trademark rights or copyright, Serv24 is entitled to modify or exchange the pertinent Software if the entire performance of the Software is not impaired thereby.
All of the rights in the Software inclusive of the copyright and other industrial property rights remain with Serv24 or with its licensor. The Customer acquires only the rights in the Software granted through these licence conditions. The Customer undertakes not to remove the copyright notice or other information regarding industrial property rights from the Software, and to affix the same to all backup copies.
In the event that the Customer breaches the above detailed licence conditions, Serv24 has the right to revoke the licence. In such case, the Customer is obliged to destroy the Software, including all copies, without undue delay. The Customer can bring the licence to an end at any time through destruction or return of the Software and all of the copies made.
If the respective manufacturer only grants Serv24 a lesser scope of rights for licensing to the Customer than that contained in numbers 9.2 and 9.4, the scope of the rights granted by the manufacturer is also authoritative in the relationship between Serv24 and the Customer. Upon request, Serv24 has to give the Customer corresponding information and to provide evidence of this in the event of dispute.
Special Provisions concerning IP Telephony/IP Transport Medium
The following provisions only apply if and insofar as the Customer purchases communications products for telephony via the so-called Internet protocol (IP Telephony) from Serv24, or such communications products which can use the Internet protocol as a transport medium between de-central and not directly linked parts of a telecommunications facility (IP Transport Medium). Both applications are identically referred to in the following as IP Telephony.
The speech information is digitised or compressed, compiled and broken down into IP data packets by the IP telephone or the communications server. These data packets are forwarded via the Customer’s IT network and/or via the Internet/Intranet to the recipient, reassembled there, if necessary decompressed and reconverted into analogue acoustic signals again.
With regard to IP Telephony products and services, Serv24 warrants the flawlessness of the deliveries and services in accordance with these General Terms and Conditions. Every IP communications solution, including the IP Telephony, however, is based on the Customer’s existing network infrastructure. The Customer is aware that delays and data loss, which can impair the IP Telephony’s functionality, can occur in particular if the Customer’s network infrastructure does not have sufficient capacity and/or configuration. Accordingly, the functionality of the IP Telephony can be disturbed, even if all of the hardware and software components supplied by Serv24 are flawless. The functionality of the IP Telephony components supplied thus assumes that the Customer’s entire network infrastructure, including each network component, has the necessary technical specifications which Serv24 supplies in writing. The assessment as to whether its network infrastructure fulfils the technical requirements and specifications is solely the responsibility of the Customer.
Serv24 only warrants the functionality of the IP Telephony in the Customer’s network if
the Customer’s network completely complies with the technical specifications handed over in writing by Serv24 in the sense of 10.3, or
Serv24 has been instructed through a separate order with advice on, review and gauging of the Customer’s network infrastructure in return for a fee, and Serv24 has confirmed that the Customer’s network infrastructure is suitable without restriction for the IP Telephony.
At the Customer’s request, Serv24 will draw up an offer regarding the optimisation of the network infrastructure. The costs of the network optimisation are borne by the Customer. In the case of the review and gauging order, the Customer undertakes to operate the network at maximum data-load during this several-day gauging process. Only thus is Serv24 in the position to gauge whether the remaining capacity of the network is sufficient to guarantee the IP’s Telephony functionality. The gauging result is recorded by Serv24 and archived both at Serv24 and also at the Customer. In any event, the Customer must ensure that within its network infrastructure the speech information of the IP Telephony always has the top priority.
If the scope of the IP Telephony is to be expanded in future, this can lead to increased requirements of the Customer’s network infrastructure. If these are not fulfilled, disruptions in the functionality of the IP Telephony can occur. The provisions contained in 10.4 accordingly apply to any expansion of the IP Telephony correspondingly, because, like the review of the network infrastructure pursuant to 10.4 2nd alternative, the specification of the network requirements pursuant to 10.3 refers to the scope of the IP Telephony ordered from Serv24 in a binding manner.
Also in the case of a subsequent, different change of the network infrastructure or the usage intensity of the Customer’s network, impairments of the speech and/or transmission quality, as well as the availability of the IP Telephony can occur. Also the subsequent installation of network components, software, applications or similar can be associated with such a subsequent change which is detrimental to the IP Telephony. Upon separate order, Serv24 will also review the compatibility of such subsequent changes with the IP Telephony. Only if this review has confirmed the compatibility of the changes with the IP Telephony will Serv24 warrant the unimpaired continued existence of the functionality of the IP Telephony.
Serv24 is authorised to save the Customer’s personal data including all of the information concerning the facility which is the object of the Contract, including hardware and software environment as well as the installation site, and also to pass the same on to the manufacturer of the respective facility component if the manufacturer demands this and/or this appears to be expedient for the performance of this Contract. The Customer consents to this storage and passing on of the data.
The Contract comes into existence upon signature by both contract parties. Amendments and additions to these Conditions or to individual agreements are only valid if they are made in written form and are signed by authorised representatives of both parties. This also applies to a potential waiver of the written form.
Should individual provisions of these Terms and Conditions be or become invalid, the validity of the other provisions will remain unaffected thereby. A provision which is legally valid and which comes economically as close as possible to the provision wanted by the parties shall take the place of the invalid provision until the parties have agreed upon a corresponding new contractual provision. This shall apply correspondingly in the event that unintended lacunae surface.
The legal venue is Winterthur, Switzerland.