Terms and conditions Switzerland
General terms and conditions of getunik ag, Hardturmstrasse 101, CH-8005 Zurich
1. Scope of application
These terms and conditions govern the relationship between clients (hereinafter referred to as “clients”) and getunik AG (hereinafter referred to as “getunik”) and apply to services and products, provided that they are declared applicable and no deviating written regulation is made. Should any provision of these General Terms and Conditions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. In such a case, the contracting parties undertake to reach an agreement that comes close to the original provision.
getunik offers its clients high quality services in the field of IT. The content and scope of the individual services are set out in the individual contract or order confirmation which, together with these General Terms and Conditions, forms the basis of the contractual relationship between the client and getunik.
3. The project
In the following, project is understood to mean any kind of services provided by getunik to the client within the scope of its business activities (e.g. consulting, project development, project management, creative conception and realization, web design, etc.). For the purpose of an orderly and risk-minimized project execution, the contracting parties shall regulate the joint tasks, competencies and responsibilities of the project in the individual contract, in the order confirmation or in a separate project organization. The contracting parties are obliged to participate in the project management and in the individual project teams until the project is completed. For this purpose, they shall designate the employees equipped with the necessary decision-making powers.
4. Instructions and duty of cooperation of the customer
The client shall support getunik in the provision of its services essentially by providing timely and clear instructions, making the necessary information available in the agreed format, ensuring permanent access authorization to all components of the client’s IT system required for the fulfillment of the contractual obligations, as well as providing suitable staff in sufficient numbers to fulfill the client’s contractual obligations to cooperate. If the client’s instructions contain inappropriate instructions or if instructions are missing which make the fulfilment of the project impossible or considerably more difficult, getunik will inform the client of this fact and request new or additional instructions and information. If, despite notification, the instructions necessary for the execution of the project and the disclosure of data necessary for the project are not forthcoming, getunik shall set the client in writing a reasonable deadline for the fulfilment of his obligation. If this deadline expires unused, getunik shall be entitled to withdraw from the contract without compensation. In this case, the client’s liability for damages shall be determined in accordance with Section 9 of these GTC. All costs arising from the fulfilment of the client’s obligation to cooperate shall be borne by the client. If getunik incurs additional expenses due to the client’s failure to meet his obligations to cooperate in a timely manner, the client will be charged for such additional expenses.
The dates specified in the individual contract are only approximate, unless they are expressly designated as fixed dates. The parties shall do their utmost to meet them. If the client does not comply with his obligations to cooperate, getunik’s following deadline obligations shall be suspended for the duration of the delay. The duration of the period of grace within the meaning of Art. 107 CO for getunik is 60 (sixty) days. Any liability for damages caused by delay is excluded.
6. Services provided by getunik
6.1 Order execution
getunik warrants that the work assigned within the scope of the individual contract or order confirmation will be carried out with due diligence and the required expertise. The shipment of products and services by getunik from Zurich is at the client’s expense and risk.
The rapidly advancing technical development in the Internet sector requires regular adaptation of the realized projects. getunik can therefore not guarantee that their functionality will remain guaranteed in the event of changes in the system environment as well as in combined use with any data, information systems and programs. Any system maintenance is not part of this agreement.
6.3 Defective performance
After completion of the project, an acceptance protocol is drawn up with the customer. Defects may still be notified in writing within 5 (five) working days after the preparation of the acceptance report or discovery of the hidden defect. In any case, getunik has an exclusive right to rectify the defect. If getunik fails to remedy the defects within a period of 60 (sixty) days after receipt of the notice of defects, the client shall be granted an exclusive right to a reduction in price to the extent of the reduced value proven by him. If the rectification of defects causes excessive costs, no rectification of defects may be demanded, but only a reduction of the fee. For products and work of third party suppliers included in the scope of services, the third party warranty shall apply to the exclusion of any further warranty or liability on the part of getuniks.
For direct damages resulting from the present contractual relationship, getunik shall be liable in total up to the amount of the agreed remuneration for the project, provided that gross negligence or intent on the part of getunik can be proven. Any further liability of getunik and its vicarious agents for a certain technical or economic success, for indirect damages such as loss of profit, claims of third parties as well as for consequential damages resulting from loss of production, loss of data and liability for slight negligence are expressly excluded, subject to further mandatory legal liability provisions. In particular, the client shall be responsible for appropriate security measures in organizational, technical and contractual terms in connection with the allocation of access passwords, data transmission, misuse by unauthorized persons and personal data within the meaning of the Data Protection Act to the exclusion of any liability on the part of getunik.
7. Design credit
getunik is entitled to place a discreet notice on the created e-solution and to connect it to its website by means of a hyperlink. getunik is entitled to point out in its advertising material and on the Internet that it has realized the client’s e-solution.
8. Services of the client
If the fee owed by the customer does not result from the individual contract or the service description, the work will be charged according to time and effort and not as a lump sum. 1/3 (one third) of the total remuneration budgeted for the project is to be paid as a deposit upon conclusion of the contract. In both cases, the total fee shall be in Swiss francs, excluding value-added tax and excluding any fees, incidental costs, expenses and any software licenses acquired for the client, as well as any services provided by third parties which have been claimed with the client’s consent or to the extent of getunik’s right of representation. The individual partial payments must be made within 10 (ten) days of the invoice date. In the event of late payment, getunik may suspend all project activities until payment is made. During this period, getunik’s deadline obligations shall remain suspended. Any offsetting of the fee against counterclaims of the client is only permissible with getunik’s written consent.
If the order is cancelled by one of the parties before completion for an objectively justified reason, the payments made by the client shall remain in full with getunik. getunik reserves the right to assert further claims, insofar as the necessary expenditure made with regard to the order exceeds the payments made. In addition, the client shall reimburse getunik on a pro rata basis for services already rendered. getunik reserves the right to claim further damages. If the contract is terminated prematurely without objective justification, the termination shall be deemed to have been made at an inopportune moment. In this case, the client owes getunik both the negative interest in the contract and the loss of profit due to lack of compensation. Even in the event of termination, getunik retains all rights to work results created by it. In this case the client is not granted any rights of use. If software licenses have been purchased for the client, they remain with the client at the client’s expense.
10. Advertising rights and fairness
The customer shall bear sole responsibility for compliance with the legal provisions and principles of fairness in advertising which must be observed in terms of content (Internet presence, advertisements and advertising). In particular, the customer guarantees the legality (copyrights, licenses, penal provisions) of the data and contents supplied by him for the fulfilment of the order. The client undertakes to indemnify getunik in the event of a claim by a third party due to an alleged or actual violation of the above-mentioned provisions, whereby indemnification also includes any costs for legal protection. getunik is furthermore entitled at any time to refuse the use of material and/or data that have probably been obtained illegally, as well as material and data with probably illegal content, without compensation for damages.
11. Representation towards third parties
getunik may call in auxiliary persons and third parties for the performance of the contract. Liability for auxiliary persons is also excluded for slight negligence. For third parties, getunik is only liable for careful selection and instruction. In dealings with third parties, getunik acts in the name and on account (direct representation) of the client within the framework of the performance of the contract. The authorisation as well as the scope of representation shall result from the individual order and shall include all legal acts which are part of its fulfilment.
12. Author and rights of use
getunik reserves its property rights and copyrights (including related rights) for all projects created (including indicative offers, strategies, concepts, calculations, etc.) Upon full payment of the fees and costs, the client acquires the non-exclusive right to use the work in accordance with the contract. Unless otherwise expressly agreed in writing, the client shall have no claim to the release of the source code of the applications developed by getunik. getunik shall ensure that the necessary authority to use the software it delivers is in place. getunik shall hold the client harmless against claims for infringement of industrial property rights and copyrights arising from such software, provided that the client immediately notifies getunik of any alleged infringements of which he/she becomes aware. The client shall procure the licenses required for the operation of the project result.
13. Data and documents
During the performance of the contract, getunik manages the data and documents supplied by the client and those produced by the client himself. getunik excludes all liability for damage to or loss of data, data carriers and documents owned by the client, to the extent permitted by law. In any case, however, getunik is only obliged to reimburse the cost of materials. After full payment of the fees and costs by the client, the client may demand the surrender of the data and documents for a fee that covers the costs. After completion of the project, getunik is entitled to destroy data and documents that are no longer in use without prior request to the client. The surrender of the data and documents to the client shall not under any circumstances result in a release of the rights of use.
14. Data protection
The parties will comply with the applicable regulations for the protection of personal data. getunik will treat the client’s data with the utmost care and protect it from misuse and loss. To this end, getunik will take technical and organizational measures that comply with the valid requirements of the European DSGVO (basic data protection regulation) and the Swiss DSG (data protection law).
If the agency processes the client’s personal data as a processor on behalf of the client (e.g. in the context of hosting, support or development with access to the client’s real data), the parties agree on a contract processing agreement in accordance with customary market standards.
14.1 All of the client’s data stored and processed by getunik are the exclusive property of the client and will be used by getunik exclusively for the purpose of fulfilling the contract.
14.2 To the extent permitted by law, the client shall permit getunik to evaluate the data stored by getunik for the client in an anonymous form, for example for statistical purposes, and to use the evaluations by getunik.
The enticement or use of services in any form by persons of the other party involved in the project fulfilment requires mutual written agreement. This restriction shall apply during the term of the contract and for one year after termination of the contract.
16. Choice of law and place of jurisdiction
Swiss substantive law is exclusively applicable to the present regulations, excluding the Vienna Convention on Contracts for the International Sale of Goods. Any disputes arising directly or indirectly from this contract shall be subject to the exclusive jurisdiction of the courts at getunik’s domicile in Zurich. getunik shall, however, be entitled to sue the contracting party at its domicile/seat of residence.
Gregor Nilsson, Partner, Managing Director Switzerland