Of Innostart GmbH, dated 1 May 2016
1. Scope
1.1 The following General Terms and Conditions (hereinafter: “GTC”) apply to all deliveries, services and offers of Innostart GmbH (hereinafter: “Innostart”). Special provisions that exist for a product or service distributed by Innostart (e.g. perpetual or time-limited licences/terms of use for software, conditions for maintenance or support services) take precedence over these GTC insofar as their content deviates from the GTC.
1.2 Conflicting terms and conditions of the customer do not become part of the contract, even without express objection and even in the event of delivery.
1.3 Any amendment, deviation from or addition to these GTC must be made in writing; there are no verbal side agreements. This also applies to every contract concluded on the basis of these GTC, unless it places another form on an equal footing with the written form.
1.4 Innostart reserves the right to amend these GTC at any time without further notice with effect for all future contracts based on them. With regard to existing contractual relationships, Innostart is also entitled to amend these GTC by informing the customer concerned individually in writing of the amendment. The amendments take effect one month after notification. If the amendments are to the customer’s disadvantage, the customer may terminate the contract within one month of receipt of the notice of amendment. If the customer does not terminate, the amendment becomes effective towards the customer upon expiry of the one-month period.
2. Offer and conclusion of contract
2.1 Offers by Innostart are non-binding, in particular with regard to the nature and availability of the main service, prices, quantity, delivery period, delivery options and ancillary services. In particular, changes in design, technology and functionality as well as errors in descriptions, illustrations and price information are reserved. A contract is only concluded by written order confirmation and/or by dispatch of the goods and/or by execution of the order by Innostart and is governed exclusively by its content.
2.2 Explicitly different provisions by Innostart on the conclusion of the contract, for example in offers, order forms or Innostart web shops, take precedence and may, for example, provide that the contract is concluded when the customer declares his consent to the contractual provisions listed there in the online customer portal.
2.3 An automatically generated e-mail that merely confirms receipt of an order does not constitute an order confirmation.
2.4 Unless otherwise stated, written offers by Innostart are valid for 30 days.
2.5 Any assumption of guarantees or assurance of characteristics in favour of the customer requires written confirmation by Innostart.
2.6 Telephone agreements are only binding if confirmed in writing.
2.7 The scope of the services to be provided by Innostart is determined solely by written contracts.
2.8 Deviations from the offer documents or the order confirmation that are mandatory due to legal or technical standards are reserved with regard to performance.
3. Installation, training and consulting
3.1 The customer is responsible for the proper installation, commissioning and maintenance of delivered software. Neither installation by Innostart nor training and instruction of the customer or its operating staff (end users) in the use of the delivered software are part of the scope of services. These services are provided only on the basis of a corresponding agreement and are invoiced separately.
3.2 Where Innostart provides training, consulting or installation services, the customer shall ensure that the necessary prerequisites on the customer’s side are met, in particular that the required premises and infrastructure, documents and personnel are made available. If the customer fails to properly fulfil its obligations to cooperate under sentence 1, the contractually agreed execution periods of Innostart are extended appropriately. Innostart may invoice the additional expense caused by the delay, in particular for the extended provision of its own personnel or its own material resources.
3.3 Information requires written confirmation.
4. Prerequisites for performance and fulfilment
4.1 Unless otherwise agreed, the customer’s claims to performance arise only upon full payment of the contractually agreed fee. In particular, rights of use to software arise – irrespective of its activation by licence key – only upon full payment of the licence fee, unless other agreements exist.
4.2 Ordered products and requested services are shipped or provided exclusively to addresses in Switzerland or Liechtenstein.
4.3 All deliveries are made at the customer’s expense and risk.
4.4 Innostart is entitled to make use of the assistance of third parties to fulfil the services it owes.
4.5 Innostart is entitled to make partial deliveries and partial services to a reasonable extent.
4.6 Products delivered for test or demonstration purposes (hardware, software, data carriers, documents etc.) remain the property of Innostart. Innostart reserves the right to equip software in such a way that the programs are no longer fully operational after expiry of the agreed test period. The customer cannot derive any claims from this.
4.7 In the event of a renewed request for a data carrier or product-accompanying documents (CD-ROM, DVD, manual etc.) as well as in the event of exchange/return of goods, Innostart GmbH is entitled to charge a handling fee.
4.8 Rebookings and cancellations of services reserved by the customer with Innostart must in every case be made in writing and only become legally valid upon written re-confirmation by Innostart. Innostart is entitled to charge compensation for administrative or cancellation costs. Clarifications and preparations already carried out will be invoiced.
4.9 If a customer defaults on acceptance of ordered goods, Innostart is entitled, after setting a reasonable grace period of no more than 14 days, to withdraw from the contract and claim damages. If Innostart claims damages, these amount to 30% of the order value, unless the customer proves a lower or Innostart a higher loss.
5. Delivery periods
5.1 Innostart is bound exclusively by delivery dates agreed in writing. Unless otherwise agreed, changes to orders result in the cancellation of previously set dates and deadlines.
5.2 Delivery and performance periods are extended appropriately in the event of force majeure and all other obstacles for which Innostart is not responsible and which have a significant influence on the delivery or service, in particular in the event of strikes and lockouts at Innostart, its suppliers or their sub-suppliers.
6. Prices
6.1 Prices are net in Swiss francs, exclusive of value added tax, packaging and freight charges. Deliveries and services for which no price was agreed at the time of ordering are charged at the list prices valid on the day of conclusion of the contract or on a time-and-materials basis at the applicable rates.
6.2 Training, installation and other services are charged according to the price list valid at the time of acceptance of the order, unless a fixed price or discounts have been agreed.
6.3 Innostart is not bound by the stated prices if a delivery period of more than four months from conclusion of the contract has been agreed. In this case, the prices valid at the time of delivery are charged.
6.4 Any claims for reimbursement by the customer, e.g. due to overpayments, double payments etc., are credited to the customer’s invoice account and, as far as possible, offset against the next claim due.
7. Payment
7.1 Unless otherwise agreed, payments are to be made within 10 days of invoicing and without any deduction. If this deadline is not met, the customer is in default without further notice, in particular without a reminder.
7.2 If the customer is in default of payment, Innostart is entitled to claim default interest of 8% above the base rate, unless the customer proves a lower or Innostart a higher loss.
7.3 If the customer is in default of payment, Innostart is entitled, after setting a reasonable grace period of no more than 14 days, to withdraw from the contract and claim damages. If Innostart claims damages, these amount to 30% of the order value, unless the customer proves a lower or Innostart a higher loss.
7.4 The customer may only set off undisputed or legally established claims or offset these against claims of Innostart. The customer may only exercise rights of retention if its counterclaim is undisputed or has been legally established.
7.5 If the customer owes Innostart several payments at the same time, the debt that is due is settled first and, among several debts that are due, the older debt in each case, unless the customer has specified the allocation of payment.
7.6 Innostart reserves the right to provide deliveries and services only against advance payment by the customer. Innostart is free at any time to permit or exclude certain payment methods.
8. Retention of title
8.1 Innostart retains title to the delivered program carriers as well as the right of use to the software contained on them until full payment of all claims arising from the business relationship. Innostart is entitled to make a corresponding entry in the register of retention of title. The customer shall keep the goods subject to retention of title for Innostart with the care of a prudent businessman. In the event of conduct by the customer in breach of contract – in particular default of payment – or anticipated suspension of payments, Innostart is entitled to take back the goods subject to retention of title at the customer’s expense. The exercise of rights under the retention of title or a demand for return does not constitute withdrawal from the contract.
9. Warranty for software deliveries
9.1 The customer must inspect delivered software or software components (hereinafter collectively: delivery) immediately for freedom from defects, document any material defects in detail and notify Innostart in writing within 14 days of delivery. Innostart endeavours to remedy material defects notified within a reasonable period. In the absence of a timely, detailed notice of defects, the delivery is deemed to have been accepted and approved as free of defects.
9.2 Innostart provides all services owed under this contract expressly with the exclusion, to the greatest extent permitted by law, of all warranty or guarantee claims. Warranty rights exist solely for characteristics of the software expressly promised in writing.
9.3 In particular, Innostart does not warrant that the maintained software can be used without interruption and/or at a specific time or that it can be used free of errors and malfunctions. Any unauthorised modification of the software by the customer results in the loss of all warranty claims.
9.4 In any event, all warranty claims become time-barred within 12 months of the respective software delivery.
10. Due care and liability
10.1 Innostart provides the contractual services owed with due care. A specific result is owed only if expressly promised in a separate contractual agreement.
10.2 Innostart assumes no liability for interruptions in software use that serve the purpose of remedying defects, maintenance, conversion of the infrastructure, introduction of new technologies or similar purposes.
10.3 Innostart is liable exclusively for damage resulting from intentional or grossly negligent breach of its principal contractual obligations. Otherwise, any liability in connection with the services governed here is excluded to the greatest extent permitted by law.
10.4 In particular, Innostart is in no event liable for indirect damage, consequential damage, pure financial loss such as lost profit or unrealised savings, business interruptions, loss of earnings or turnover and/or additional expense, atypical and unforeseeable damage, or damage whose occurrence the customer could have prevented by measures reasonable for it – in particular by data backup.
10.5 Insofar as Innostart is liable, Innostart is liable only up to the amount of the typically foreseeable damage or the typically foreseeable expenses. The customer is not entitled to transfer its claims in this regard in whole or in part to third parties without the consent of Innostart.
10.6 The provisions of this clause 10 also apply in favour of the employees and other vicarious agents of Innostart.
11. Intellectual property
11.1 Innostart retains the copyright and industrial property rights as well as the exploitation rights to delivered software. The proprietary notices affixed to the program carrier or packaging – including those of third parties – must be observed. Unless expressly agreed otherwise, the customer acquires a simple right of use to the software. In all other respects, the customer’s right of use is governed by the licence terms for the respective Innostart product.
11.2 Innostart reserves all rights to every design, text and graphic on its website, in its publications and documentation etc. Copying or any other reproduction is permitted only for the purpose of placing an order with Innostart.
11.3 Innostart GmbH reserves the ownership and copyrights to illustrations, texts, drawings, calculations and other documents created by Innostart or on behalf of Innostart, irrespective of the medium used. Before passing them on to third parties, the customer requires the express written consent of Innostart GmbH.
11.4 The customer’s rights of use and exploitation for software products after commissioning or use thereof are governed by the applicable software licence agreement.
12. Data protection
12.1 Innostart GmbH undertakes to observe the provisions of the Swiss Data Protection Act and other relevant legal norms when collecting, processing and using personal data.
12.2 Customer data arising in the course of order processing is used only for internal market research purposes. It is passed on to third-party partner companies only insofar as necessary for the proper provision of services.
12.3 The customer agrees to this use of its data. In all other respects, the customer has the right to inspect the data stored about it at any time upon request.
12.4 Innostart takes appropriate security precautions for the processing of transactions in the web shop and uses, in particular, password protection, SSL encryption and firewall technology to secure data transfer. The customer must ensure that the password is protected against access by unauthorised persons.
12.5 Customer information that becomes accessible to Innostart as a result of a support order, a data correction or a client adjustment is treated confidentially and made accessible only to the employees entrusted with the order. All employees who obtain knowledge of customer data in connection with their contractual activity for Innostart are obliged to treat this data confidentially and neither to pass it on to third parties nor to inform them of it. Data carriers provided are returned to the customer after the service has been rendered or destroyed immediately by Innostart.
13. Assignability of claims
13.1 The customer is not entitled to assign contracts concluded with Innostart as a whole or individual rights or obligations arising from them, or otherwise to transfer rights and obligations arising from contracts concluded with Innostart in whole or in part to third parties without the consent of Innostart.
14. Final provisions
14.1 In case of doubt, these terms remain binding in their remaining parts even if individual or several provisions are legally invalid. Should provisions be or become invalid in whole or in part, they shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.
14.2 Swiss law applies exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
14.3 The place of performance for all deliveries and services of Innostart is Zizers/GR.
14.4 The exclusive place of jurisdiction is Chur.