THE GENERAL TERMS AND CONDITIONS OF DIAGNOSDATA AG (GTC)
Issue December 2018
1. Scope and validity
1.1. DIAGNOSDATA AG offers its customers a wide range of services and products, chiefly in the fields of information technology and telecommunications.
1.2. These General Terms and Conditions (GTC) govern the conclusion, content and execution of contracts between customers (hereinafter referred to as "Customer") and DIAGNOSDATA AG.
1.3. The terms and conditions are an integral part of all offers and contracts between the customer and DIAGNOSDATA AG.
1.4. The terms and conditions are based on Swiss law and are valid worldwide, if the parties expressly or tacitly acknowledge it, or at the latest as soon as a written or verbally agreed offer is submitted.
1.5. The terms and conditions of the customer are only applicable if and insofar as they have been accepted in writing by DIAGNOSDATA AG and are not inconsistent with the General Terms and Conditions of DIAGNOSDATA AG.
1.6. All ancillary agreements, changes, supplements and legally relevant declarations must be in writing in order to be valid.
1.7. Should individual provisions be or become ineffective or invalid, the validity and effectiveness of the remaining provisions remain unaffected. In such a case, the invalid provision shall be reinterpreted or supplemented in the sense that the intended purpose of the provision is achieved as far as possible.
1.8. These terms and conditions apply indefinitely and supersede all previous versions. DIAGNOSDATA AG may at any time and without stating reasons, by written notice or announcement by e-mail, change the content of these terms and conditions. If the validity of the new terms and conditions is not objected to in writing within 14 days of receipt of the new terms and conditions, they shall be deemed accepted.
2.1. DIAGNOSDATA AG provides its services and sales in accordance with the conditions agreed in these terms and in the individual contracts.
2.2. Services and consideration are specified in customer-specific offers or individual contracts between the customer and DIAGNOSDATA AG. In particular, the type of services to be performed by DIAGNOSDATA AG, their scope, duration and remuneration are regulated.
2.3. The contract is concluded by the acceptance of the offer of DIAGNOSDATA AG regarding the purchase of services, products or licenses by the customer. The contract is also concluded when the customer uses the services offered by DIAGNOSDATA AG or purchases or uses products from DIAGNOSDATA AG.
2.4. Even after the order has been confirmed, DIAGNOSDATA AG has the right to withdraw from contracts in whole or in part if, in its own judgment, the purchase price claim appears to be in jeopardy. There is no obligation to provide documentation to the customer.
2.5. Any rights of retention of the customer in the case of DIAGNOSDATA AG goods is explicitly excluded.
3.1. Unless otherwise stated, the prices of the products and services are net in Swiss francs, exclusive of duties and taxes, additionally to be paid by the customer.
3.2. Unless otherwise agreed, accessories, installation and installation materials are not included in the price.
3.3. The prices are calculated according to the confirmed order. For hardware and software as well as maintenance and support, which DIAGNOSDATA AG obtains in foreign currency, DIAGNOSDATA AG reserves the right to adjust the exchange rate at the time of invoicing. The price quoted in CHF is therefore based on the current exchange rate at the time of the offer.
3.4. Product and / or price changes as well as errors remain reserved.
4. Terms of payment
4.1. The terms of payment, which are listed on the invoices of DIAGNOSDATA AG and / or in individual contracts, replace these conditions. In the absence of such, invoices of DIAGNOSDATA AG are due on the 10th day after the invoice date, purely net, without any deduction. After expiry of this period, the customer is in default without a reminder and DIAGNOSDATA AG is entitled to add 5% p.a. to the invoice amounts outstanding.
4.2. DIAGNOSDATA AG reserves the right to demand advance payment at any time without giving reasons.
4.3. DIAGNOSDATA AG is entitled to refuse to provide services, to deliver the product or to grant the license in case of late payment. All consequences resulting from these measures are the sole responsibility of the customer.
4.4. The customer is not entitled to offset invoices from DIAGNOSDATA AG with any counterclaims against DIAGNOSDATA AG.
4.5. At the request of DIAGNOSDATA AG, the customer assigns his claims resulting from the resale of products and / or services delivered from DIAGNOSDATA AG back to DIAGNOSDATA AG as a payment (Art. 172 OR).
5. Services of DIAGNOSDATA AG
5.1. Type of services
5.1.1. DIAGNOSDATA AG offers its customers a comprehensive range of services in the field of information technology and telecommunications.
5.1.2. The nature, extent and characteristics of the services of DIAGNOSDATA AG are each regulated in separate individual agreement.
5.1.3. DIAGNOSDATA AG is authorized to involve third parties for the provision of services.
5.1.4. The services of DIAGNOSDATA AG are usually provided on weekdays, from Monday to Friday between 09:00 to 12:00 and 13:00 to 17:30. Services outside of these block times as well as on weekends, local and national public holidays require the approval of DIAGNOSDATA AG and will be charged with a surcharge to be agreed.
5.2.1. For the services provided by DIAGNOSDATA AG, the customer owes a price according to the relevant individual agreement.
5.2.2. Unless otherwise agreed, the services of DIAGNOSDATA AG are billed according to resources used and periodically (usually monthly).
5.2.3. By arrangement, a service package (hourly) can be purchased in advance. The service is available to the customer for a period of 12 months. After expiry of this period, the customer is no longer entitled to benefits from the service package. An upgrade from a smaller to a larger package is possible by arrangement. The downgrade is excluded. If the customer has chosen a larger package and does not use all services during the period, he is not entitled to a refund. The selected add-ons for the package cannot be deselected at a later date. If the performance of an add-on has been delivered, it will be fully charged and any refund of unused add-ons is excluded.
5.2.4. Contract related expenses, in particular travel expenses, shall be borne by the customer and will be charged according to the actual expenses incurred on the basis of supporting documents, in addition to the kilometres travelled by passenger car during work-related journeys.
5.3. Co-operation obligations of the customer
5.3.1. The customer undertakes to provide DIAGNOSDATA AG with all necessary information and at no charge and to create and maintain within its environment all operational, personnel, organizational, technical and other requirements necessary to enable the provision of services by DIAGNOSDATA AG, so that DIAGNOSDATA AG can deliver its contracted services to the customer. If required, the customer must guarantee DIAGNOSDATA AG the necessary access to its premises to provide the service. Delays and additional expenses of DIAGNOSDATA AG, as a result of late or incorrect fulfilment of preparatory or co-operation duties, are entirely at the customer's expense.
5.3.2. The customer is fully responsible for the data and system backup.
They undertakes to carry out the necessary backups before
DIAGNOSDATA AG makes any hardware or software changes.
DIAGNOSDATA AG cannot, at any time, be held responsible for any data loss or damage caused by the total or partial failure of one or more systems. In addition, any profit loss which may result, cannot be claimed for.
5.4. Intellectual Property rights
All intellectual property rights (intellectual property rights and ancillary copyrights as well as entitlements to such) to the results of work resulting from the fulfilment of the contract belong to DIAGNOSDATA AG in their entirety. In the absence of any agreement to the contrary, all uses, in particular the processing and duplication of the work results, require the approval of DIAGNOSDATA AG.
DIAGNOSDATA AG warrants that the service it provides has the contractually agreed characteristics. The order fulfilment will be demonstrated to the customer in a suitable form. Defects must be reported by the customer within 10 days. If the customer fails to report the defects within the agreed period, DIAGNOSDATA AG cannot be held liable for the defect in question. Warranty rights terminate for all defects one year after fulfilment of the order i.e. acceptance of the service. If there is a defect reported within the 10 days, the customer is entitled to rectification, free of charge. DIAGNOSDATA AG commits to remedy the defects within a reasonable time. The right to change and/or reduce the scope is explicitly excluded.
5.6. Premature termination
DIAGNOSDATA AG is entitled to terminate service contracts at any time or cease the services at any time or suspend them until further notice. Namely if:
- the customer violates his contractual obligations and fails to produce the contractual conditions within the deadline set by DIAGNOSDATA AG;
- the customer unlawfully uses services or misuses them for unlawful acts;
- the customer becomes insolvent.
DIAGNOSDATA AG is not liable for any damages incurred.
6. Purchase of hardware and software products
6.1. Products and services
6.1.1. DIAGNOSDATA AG distributes hardware products and licenses for the associated software. These special provisions for the purchase of hardware and software products govern the rights and obligations in the relationship of DIAGNOSDATA AG to their customers regarding the conclusion, content and execution of such purchase contracts.
6.1.2. The nature, extent and characteristics of the products from DIAGNOSDATA AG are each regulated in individual agreements.
6.1.3. Unless otherwise agreed, DIAGNOSDATA AG will not provide the customer with any installation and operating instructions in paper form for hardware products. The documents can be viewed online on the manufacturer's website.
6.1.4. The customer has the right to request a change in the scope of service in writing during the performance of the service. In this case, DIAGNOSDATA AG is entitled to charge already incurred costs to the customer. The same applies if the customer cancels an order.
For the products provided by DIAGNOSDATA AG, the customer owes a price according to the seperate individual agreement.
6.3. Information obligation of the customer
6.3.1. The customer has to provide DIAGNOSDATA AG with all information necessary for the fulfilment of the contract. He must draw the attention of DIAGNOSDATA AG to any special technical requirements as well as legal, official and other relevant details regarding the place of delivery, as far as they impact the costs, the execution or the use of the products.
6.4. Retention of title
6.4.1. The products delivered by DIAGNOSDATA AG remain the property of DIAGNOSDATA AG until DIAGNOSDATA AG has received the full purchase price in accordance with the contract. DIAGNOSDATA AG is entitled to enter its retention of title based on Art. 715 ZGB in the property register at the respective seat / domicile of the customer until full payment of the purchase price is received. The customer is obliged to give DIAGNOSDATA AG his written consent to register retention of title, in all points essential for the registration.
6.4.2. As long as the purchase price has not been paid in full, the customer is obliged to maintain the products delivered by DIAGNOSDATA AG, and to treat them with care and insure them against all usual risks.
6.5. Delivery time and delivery
6.5.1. The delivery dates stated by DIAGNOSDATA AG are to be considered as guideline values, without express written assurances to the contrary. The specification of a delivery date is made to the best of our knowledge, but without guarantee.
6.5.2. The delivery period shall be extended appropriately in case of subsequent modification of the order, unforeseeable events and obstacles (fire, theft, natural events, etc.), delays in transport and the like, caused by the supplier, in case of non-compliance with the contractual obligations, in particular the agreed payment obligations.
6.5.3. Products are shipped by Swiss Post and by registered mail. The costs for postage and packaging within Switzerland will be charged to the customer as follows:
- Up to an order value of CHF 499.00, postage & packaging per order;
- From an order value of CHF 500.00, the delivery is postage free;
- In the case of a COD shipment, a surcharge of CHF 15.00 will be charged.
The costs for delivery outside Switzerland are charged individually.
6.5.4. The customer must check the goods within 5 days upon receipt. The customer is obliged to notify DIAGNOSDATA AG of any defects without delay in writing, otherwise the delivery is deemed to have been accepted.
6.6. Transfer of benefits and risks
By handing over the delivered products to the dispatch, the benefits and risks are also transferred to the customer. Additionally, Art. 185 OR is applicable.
6.7. Copyright / Software Warranty
In so far as software is included in the scope of delivery, this is provided to the customer for their own use, i.e. they may neither copy these nor allow others to use it. The provisions of the license agreement of the manufacturer apply exclusively.
6.8. Warranty and guarantee
The warranty of DIAGNOSDATA AG for the products delivered by it is limited to the services of the manufacturer/supplier. The warranty periods begin with the delivery date from the manufacturer's logistics centre. At the request of the customer, DIAGNOSDATA AG can exercise a warranty claim on behalf of the customer from the manufacturer for a fixed fee. The only duty of DIAGNOSDATA AG, however, is to assign its own warranty claims against the manufacturer/supplier to the customer. The customer waives further warranty claims against DIAGNOSDATA AG.
7.1. The customer is responsible for the legal and contractual use of the
DIAGNOSDATA AG offered services. In particular, these may not be used for criminal or protectionistically relevant acts and/or the customer assumes all responsibility and liability for the content of the information and data transmitted through the systems and network of DIAGNOSDATA AG.
7.2. If the customer plans works, involving e.g. power interruptions, switching, cable transfers, equipment replacement, location changes of terminals, etc., which may result in service interruption of the DIAGNOSDATA AG supervised connections, they must notify DIAGNOSDATA AG in writing at least one working day before the planned work. DIAGNOSDATA AG reserves the right to charge the customer for expenses incurred as a result of non-compliance with this regulation.
7.3. DIAGNOSDATA AG is solely liable for direct damages which it has caused in wilful or grossly negligent breach of the contract concluded between the parties. Liability is limited to the sum of the service, product or license purchased by the customer. Any further liability as well as liability for auxiliary persons and third parties is excluded, as far as legally permissible. In particular, there is no right to compensation for indirect, direct and consequential damages (in particular lost profits, losses, unrealized cost savings, data loss, etc.).
8. Confidentiality and privacy
8.1. The parties and any third parties involved undertake to treat all plans, samples, drawings, industrial or trade secrets, business secrets and trade secrets disclosed to them in the context of the contractual relationship with strict confidentiality. They undertake not to disclose any such confidential information to third parties without the express written consent of the other party. These discretionary obligations continue to apply even after termination of the contractual relationship between DIAGNOSDATA AG and the customer.
8.2. The customer agrees that data or parts thereof may be stored on data servers (cloud storage) in Switzerland or in the European Union.
8.3. DIAGNOSDATA AG undertakes to comply with the applicable data protection regulations.
Any rights and/or obligations from individual contracts (delivery and services) can only be transferred by the customer with the prior written consent of DIAGNOSDATA AG.
10. Applicable law and jurisdiction
10.1. The individual contracts and the terms and conditions are subject exclusively to Swiss law with the express exclusion of state treaty standards.
10.2. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationships is with the competent courts at the headquarters of DIAGNOSDATA AG. However, DIAGNOSDATA AG is entitled to sue the customer at their registered office / domicile.
Cham, December 2018