General terms and conditions

1 General

1.1 These General Terms and Conditions („GTC“) apply to all business transactions of deltaconX AG with its customer during the entire duration of mentioned business transactions and also with respect to future business, unless otherwise agreed in writing.

1.2 These GTCs are accepted by the customer by entering into a business transaction with deltaconX AG. The GTC shall be deemed approved and accepted and any conflicting terms and conditions are deemed superseded, unless deltaconX AG receives within three days a written objection specifically describing the repudiated condition of the GTC in terms of its nature and extent.  Amendments and supplements concerning finalized agreements with customers of deltaconX AG become binding only after a written confirmation of deltaconX AG. General terms and conditions of the customer are only binding for deltaconX AG if explicitly accepted in writing.

1.3 Employees of deltaconX AG or third parties commissioned by deltaconX AG with the provision of contractual services are not authorized to make side-agreements or representations that deviate from the content of the agreement concluded between customer and deltaconX AG or to this GTC.

2  Scope of Contract

2.1 The nature and extent of the contractual performance shall be determined by separate agreement or according to the order confirmation of deltaconX AG. The individual agreement regulates the business typical details whereas the GTC regulate the general principles of the business relationship between the parties. In case of conflict between the individual agreement and the GTC, the individual agreement shall prevail.

2.2 Individual agreements between customer and deltaconX AG have to be concluded in writing. Usually the customer will accept a written offer of deltaconX AG. In the interest of smooth cooperation, telephone or other informal orders are also accepted however only as long as they are confirmed in writing, by fax or email by deltaconX AG (however, ambiguities resulting from this are charged to the customer).

2.3 Changes in the legal regulation and/or technical rules, will not automatically apply to and modify the contractual performance. The parties will inform each other during the contractual performance of any changes known, planned or adopted, so far as known to them.

2.4 The customer has to provide deltaconX AG with all documents and information necessary or conducive with regard to the execution of the contract. deltaconX AG is not liable for delays or defects caused by unclear, incorrect or incomplete order placement.

3 Services / Delivery

3.1 deltaconX AG provides the services itself or through appointed subcontractors.

3.2 deltaconX AG is entitled to divide an order in partial deliveries/services and to charge these separately.

3.3 deltaconX AG shall upon receipt of a request by customer inform the latter:

  • whether the request can be managed within the service offer provided by deltaconX AG;
  • about eventually additional specifications required;
  • the time frame expected for the settlement of the request.

3.4 The above specifications shall apply subject to unforeseen circumstances and obstacles affecting deltaconX or its appointed subcontractor, in which case the delivery period shall be extended accordingly, even if occurring during an existing delay. In the event of a mutually agreed change in the contractual performance, the originally agreed delivery date shall cease to apply and the parties shall agree on a new delivery date.

3.5 Delivery dates are given to the customer to the best of deltaconX AG´s knowledge. They are generally only best estimated dates, unless expressly agreed otherwise in the individual contract. After exceeding a non-binding delivery date by at least ten banking days, customer may set in writing an extended deadline to deltaconX AG which must be reasonable in view of the contractual performance but at least 10 banking days.

4 Remuneration-Fees

4.1 The remuneration will be according to the selected consulting subscription or single order. deltaconX AG will provide on request information about the currently valid consulting subscriptions and hourly fees for individual orders.

4.2 In case of consulting subscriptions, the invoicing will take place based on daily, half-day or hourly rates, rounded up to the full hour. The effective hours consumed will be deducted from the consulting subscription account.

4.3 After each order execution a written statement of the consumed and the remaining consulting hours will be provided to customer.

4.4 Hours booked according to a consulting subscription and not consumed during the validity of the contract are considered forfeited and will not be refunded.

4.5 Hours consumed on the basis of single orders will be invoiced according to the amount of hours effectively spent, rounded up to a full hour.

4.6 Customer must pay licence fees as specified in each agreement and any other fees specified therein. Unless otherwise stated, deltaconX may invoice licence fees in advance upon delivery of the Software or as soon as access to the use of the software is granted to customer.

4.7 Invoices issued by deltaconX AG are due within 30 days after receipt (via email, fax or mail). If payment is not received within mentioned time period, the customer is automatically set in default. Customer will then receive from deltaconX AG a reminder concerning the due amount increased by 3% reminder charges. In case payment is not received after the reminder deltaconX AG is entitled to take further legal action. If a prepayment has been agreed, the order will be processed only after receipt of the prepayment amount. In any case overdue payments shall accrue interests for default.

4.8 Unless otherwise agreed all prices are indicated in EURO (EUR) and are exclusive of VAT and other taxes.

4.9 The customer may set off against payment claims of deltaconX AG only with claims that are uncontested or recognized by declaratory judgement.

4.10 To the extent that customer does not comply with deltaconX AGs payment terms, deltaconX AG may at its own choice provide service/deliver against cash payment, prepayment or delivery of a security by customer.

5 Warranty

5.1 Defects in the results delivered by deltaconX AG and within its control must be notified in writing immediately, latest however within 10 days after delivery. Mentioned notice must concern objectively existing and not only minor defects and has to describe the defect as precisely as possible. If there is no objection by the customer within mentioned period, the services provided by deltaconX AG are considered complete and fully accepted.

5.2 In the event of warranty claim deltaconX AG may elect to rectify/remedy the defect. With respect to defects for which deltaconX AG is responsible and that have not been rectified/remedied within a reasonable deadline, customer may request an appropriate price reduction. Further claims are excluded.

5.3 As far as a remedy requires an extension of the agreed contract services, the additional expenses/services are to be paid by the customer.

5.4 Warranty claims are not transferable.

6 Limitation of Liability

6.1 deltaconx shall be liable for the true and diligent performance of its services.

6.2 To the extent permitted by law, the liability of deltaconX shall be:

a. limited to 100 % of the owed remuneration, or in the case of periodically recurring remuneration amounts, to 100 % of the remuneration to be paid annually.

b. excluded for any indirect or consequential losses such as loss of profit, unrealised savings and claims of third parties, consequential losses from defects or losses as a result of loss of data (with the exception of the costs of data recovery).

6.3 deltaconX accepts no liability for damage resulting from the improper use of the online platform by the customer or third parties, particularly from a breach of the duty of care.

6.4 deltaconX accepts no liability for the completeness, lawfulness, quality and topicality of the data and information it provides (e.g. files, documents, evaluations submitted, recommendations, etc.). deltaconX does not provide any guarantee that the data or information is made available without interruption and is fully available.

6.5 Furthermore, deltaconX accepts no liability for any damage that arises as a result of the data or information it has made available.

6.6 deltaconX’s liability is also excluded

a. for damage suffered due to transmission errors, technical defects, malfunctions, interruptions (including system-related maintenance and servicing work), delays in the transmission of information (e.g. data delivery), unlawful interference in telecommunications equipment or networks by third parties, overloading of telecommunication networks, willful blocking of electronic access by third parties or other deficiencies; or

b. for indirect or consequential losses such as lost profit, unrealised savings, claims of third parties, consequential losses from defects or losses as a result of loss of data (with the exception of the costs of data recovery).

6.7 Limitation of liability and exclusion of liability shall apply to contractual, non-contractual and quasi-contractual claims.

6.8 This exclusion of liability shall not apply to personal injury or property damages due to gross negligence or willful misconduct.

6.9 In the event of an alleged liability of deltaconX the customer shall report the claim to deltaconX immediately, otherwise a waiver of compensation shall be assumed.

7 Force Majeure

deltaconX AG is not liable for damages which are caused by disruption of its operations, in particular by force majeure, e.g. natural events and traffic disturbances, network and server errors, possible other line and transmission faults and any other obstacles beyond the control of deltaconX AG. In such exceptional cases deltaconX AG is entitled to fully or partially withdraw from the contract. The same applies if for a significant reason the business, in particular the online service of deltaconX AG, has to be completely or partially discontinued or limited for a certain period of time.

8 IP-Rights – Licenses

8.1 Save as otherwise hereinafter provided, all industrial copyright and all rights of use of software, programs, databases, graphics and pertaining documents and manuals produced by deltaconX AG (hereinafter the “Software”), remain in the full ownership of deltaconX AG.

8.2 The terms of license of the Software are described in the single agreements. Subject to the terms of the individual agreements, deltaconX grants to customer non-exclusive licenses for its Software to:

a) install and use the Software for internal business purposes of customer, provided that:

    • the Software may only be installed and used on computers located at the licensed location of customer specified in the agreement;
    • the number of users who are using the Software at any time may not exceed the number of users specified in the agreement;

b) make a single copy of the Software for backup purposes; and

c) use the documentation, manuals and other information delivered to customer in association with the use of the Software.

8.3 Customer may not, unless permitted by deltaconX or applicable law:

a) make any copies of the Software other than as specified in clause 9.2 (b) above;

b) sublicence any of its rights under the agreements executed with deltaconX AG;

c) provide the Software to any third party;

d) use the Software to provide any form of timesharing, bureau processing or outsorcing service, or for any other similar activity;

e) modify or create derivative works from the Software;

f) reverse engineer, decompile, dissemble, translate or make any attempt to discover the source code of the Software;

g) alter or remove any copyright notice or other identification that indicates the ownership of the Software by deltaconX AG or its licensors; or

h) take possession of any hardware which contain the Software or any computers, drives or other devices on which the Software has been copied or installed, unless the Software is first uninstall and deleted.

8.4 Customer acknowledges and agrees that:

a) ownership of all copyright, patents, trademarks, database rights and other intellectual property rights associated with the Software remain with deltaconX AG and do not pass to customer, and no rights with respect to the licensed Software are granted to customer other than those rights expressly granted in clause 8.1.

b) customer is responsible for providing, and ensuring the suitability and condition of, the hardware on which the Software is installed;

c) customer has relied on its own skills and judgement and enquiries in deciding to use the Software and that no promises, representations, warranties or undertakings have been given by deltaconX AG or anyone on its behalf of the benefits to be obtained from the Software or its suitability for any particular purpose;

d) while deltaconX AG endeavours to ensure that the Software is free from viruses, customer is responsible for taking appropriate steps (including the use of anti-virus software) to protect its computer systems from viruses;

e) customer must ensure that the Software is protected at all times from any unauthorized access, use or copying; and

f) customer is responsible for implementing appropriate backup arrangements in relation to its use of the Software, including at a minimum making weekly backup copies of the Software and any other software or data on the computers on which the Software is used.

8.5 Should deltanconX sell title to Software it shall retain, even after the full payment of all receivables, a simple, non-exclusive right of use with respect to the documentation, databases and programs as well as the right to use the product as pattern works and reference for promotional reasons, unless otherwise agreed in writing.

9 Data protection

9.1 deltaconX collects data (e.g. customer data) necessary for the performance of the contractual services, including but not limited to the execution and maintenance of the relationship with the customer and the security of its operations and infrastructure.

9.2 The customer hereby agrees that all data related to this contract as well as supplemental data available within deltaconX or from third parties may be used within the deltaconX group for analysis of the services provided (customer profile), for personalised advertising campaigns, for customer contacts (e.g. recalls) and for the development and structuring of products and services of deltaconX Group. The customer shall have the right to withdraw his consent at any time.

9.3 deltaconx is entitled to engage third parties and to disclose the necessary data to those third parties. In this context, transmission of collected data abroad may also be possible.

9.4 deltaconX and its subcontractors must always comply with relevant legislation, including but not limited to data protection regulations (GDPR). They shall take suitable steps to protect customer data and treat it as confidential.

10 Non solicitation

10.1 As long as business transactions are in place between deltaconX AG and its customer, during the entire duration of mentioned business transactions and for a period of three years after the termination of all business transactions between deltaconX AG and customer, customer will absolutely refrain from solicit or induce in any other way, directly or indirectly, any employee or sub-contractor of deltaconX AG, who is or has been involved in mentioned business transactions, to leave deltaconX AG or terminate its collaboration with deltaconX AG as sub-contractor.

10.2 Any violation of this clause obliges customer to pay a penalty to deltaconX AG corresponding to an annual remuneration and furthermore the payment of all and any damages exceeding the penalty amount.

11 Confidentiality

11.1 Customer agrees:

a) to only use confidential information concerning deltaconX for the performance of its obligations or exercises of its right under the agreements executed with deltaconX AG;

b) to take all measures necessary to keep confidential information confidential (including measures at least as stringent as those generally undertaken by customer for its own confidential information); and

c) not to release, disclose or otherwise make available any of the confidential information to any person except:

    • its employees who need to know such confidential information;
    • its contractors, representatives and legal and professional advisors who need to know such confidential information, provided that customer has entered into an agreement with such contractors, representatives and advisors which requires them to keep the confidential information confidential on term no less protective than this clause 10;
    • to the extent required by law, provided that customer disclose no more than the minimum amount of confidential information required to satisfy such law and, before disclosing any confidential information, provide (if possible) a reasonable amount of notice to deltaconX AG and exhaust all reasonable steps (whether required by us or not) to maintain such confidential information in confidence; or
    • with deltaconX’s prior written consent.

11.2 Customer must ensure that each of its employees, officers, contractors and advisors who have obtained access to confidential information comply with all of the restrictions which are contained in this clause 10.

11.3 Customer acknowledges that monetary damages may not be a sufficient remedy for a breach of its obligations under this clause 10, and that deltaconX AG is entitled, without limiting any of its other rights or remedies, to specific performance or injunctive relief as a remedy for any such breach.

11.4 Upon receipt of a request to do so made at any time following expiry or termination of the relevant agreement with deltaconX AG, customer must deliver all copies of the confidential information in its possession or control to deltaconX AG. Where it is not convenient or practical to do so, customer may destroy or delete that confidential information. Customer may for its own business purpose, such as archival and quality control purposes, retain a single copy of the confidential information.

12 General Provisions

12.1 The customer is not entitled to assign its claims arising from any agreement with deltaconX AG without the prior written consent of deltaconX AG.

12.2 The place of performance and exclusive jurisdiction for all disputes arising from the contractual relationship is Lucerne, Switzerland.

12.3 Swiss law alone shall apply and in particular the provisions of Art. 394ff. OR unless otherwise agreed in writing.

12.4 The order processing is carried out by deltaconX AG by means of electronic data processing. The customer hereby grants deltaconX AG his explicit consent to the storage and processing of relevant data become known in the context of the contractual relationship and necessary for handling the order, in accordance with statutory provisions for data protection.

12.5 deltaconX AG will treat all confidential documents and information received from customer within the contractual relationship as confidential as long as deltaconX AG is not required to disclose it according to applicable law.

12.6 If any of these terms and conditions should be determined to be invalid, illegal or unenforceable or in the event of loopholes in the wording of this GTC, the parties shall replace or amend the invalid or incomplete provisions through appropriate effective provisions in such a way that the new provisions correspond to the original financial purpose of the parties as much as possible.