GTC

04/2019

Definitions

Provider
The company linkyard ag as service provider towards the customer
Third Party Provider
A third party company independent of linkyard ag, whose supplies and services are relevant to the respective contract
Third party software
A third-party software component
Customer
The recipient of services from linkyard ag
Written form
If provisions of these GTC or contractual documents based on them require written form, this can be done - unless explicitly defined otherwise - either on paper or electronically by email
Contracting Party
Provider and customer

Scope and validity

These General Terms and Conditions (GTC) govern the conclusion, content and execution of contracts for the creation, licensing and maintenance of software between the customer and the provider.

The services are specified in the following documents, which form an integral part of the contract and are decisive in the event of contradictions in the following order

1. individual contract (contractual document)

2nd offer

3. the present general terms and conditions

Deviating agreements are possible at any time, but must be agreed in writing.

Services of the provider

The provider offers the following services in particular:
| creating software solutions using its own standard software or standard software from third parties, 
| issuing licenses for standard software, 
| maintaining software solutions and standard products, 
| selling licenses for standard software from third parties, 
| operating software solutions,
| providing consulting and support services in the IT sector.

The type, scope and characteristics of the services are regulated in the offer and/or an individual contract between the Provider and the Customer.

License of own software

The provider grants the customer a non-transferable and non-exclusive right to use the software according to the individual contract and/or offer. The duration of the license is unlimited in time, unless otherwise agreed in the individual contract and/or offer.

The customer may neither license the rights of use of the software to third parties nor lease, lend or otherwise make the software available to third parties.

License to third party software

The Provider may distribute licenses to third-party software. In doing so, the customer acquires a user license directly from the third-party provider. The license terms of the respective third party provider always apply.

In the case of a license to third-party software, the obligations of the Provider end with the transfer of the corresponding license to the Customer. The provider has no further obligations.

Maintenance

In addition, the Provider shall offer the Customer maintenance in connection with the software solutions it creates and its standard software for the duration of use. The details of the maintenance are regulated in a separate maintenance contract.

For the duration of the maintenance, the Provider shall undertake to remedy the defects in accordance with the defect classes. Unless otherwise specified, the Provider shall assume responsibility for maintenance from the time of commissioning.

Maintenance does not include the rectification of defects which existed at the time of delivery or performance of the service and which are covered by the warranty and rectification of defects according to the following paragraph.

Duties of the customer

The Customer undertakes to comply with the usage and integration requirements contained in the software documentation and to observe and comply with any additional instructions of the Provider in connection with the installation, commissioning and use of the software.  

The customer undertakes not to modify, reproduce, compare, distribute, display, publish, reverse engineer, translate, disassemble, decompile, or otherwise attempt to generate source code derived from the software.

Compensation

The Provider shall provide the services at fixed prices or according to expenditure with or without an upper limit on remuneration (cost ceiling). In its offer, it shall inform the customer of the cost types and cost rates.

For the maintenance, an annual flat rate for readiness and availability for the elimination of error messages is agreed between the Provider and the Customer in the maintenance contract. The annual flat rate includes 10 hours of maintenance, unless another value is specified in the offer or individual contract. Additional expenses in connection with maintenance and correction of error messages will be charged according to time spent at a separately agreed hourly rate.

If the Provider provides services on a time and material basis, it shall list on the invoice the hours actually worked during the period. On request, a report can be requested which lists the services and work duration of each person employed per day.

Unless otherwise agreed, the invoice will be issued after the services invoiced have been rendered. Invoices are payable within 30 calendar days of receipt and are due without deductions (net).

Execution

The contracting parties shall immediately notify each other of all circumstances from their areas which endanger or could endanger the contractual performance.

The Provider may, at its own discretion, independently call in subcontractors to perform the agreed services. It shall ensure that all contractual provisions are also complied with by the subcontractors.

Customer involvement

The Customer shall provide the Provider in a timely manner with all specifications and documents from his area of responsibility that are necessary for the performance of the contract and shall grant the Provider access to premises and IT systems necessary for the performance of the contract. The Customer shall answer enquiries within a reasonable period of time and cooperate actively and within the mutually agreed time schedule in accordance with the individual contract and/or offer.

Changes to services

Both contracting parties may request in writing changes to the agreed services. If effects on properties, costs or deadlines are to be expected, the Provider shall offer the service changes. With the written acceptance of the change offer, the service changes are deemed to be approved.

Intellectual property rights

All industrial property rights (intellectual property rights, ancillary copyrights as well as expectancies), in particular patent, copyright, design and trademark rights as well as know-how, in the software solutions already existing and yet to be developed during the term of the present contract, including the associated documentation and program documents, belong in their entirety to the Provider.

Excluded from this is any third-party hardware/software which is additionally required for the use of the Provider's software or which is additionally obtained by the Customer from the Provider and in respect of which the rights of third parties are reserved.

Information security and confidentiality

The contracting parties undertake to maintain secrecy with regard to confidential documents, information and data made available to them by the other contracting party and which are neither obvious nor generally accessible. This obligation shall also be imposed on third parties involved. The confidentiality obligations already exist before the conclusion of the contract and shall continue to exist after the termination of the contractual relationship. This is without prejudice to statutory reporting, education and information duties.

Delay

The contracting parties shall be in default after reminders of contractually agreed dates, granting a grace period of 90 calendar days.

Notification of defects and faults

The customer reports software errors and malfunctions via the linkyard customer portal, enclosing the available documentation material (faulty files, screenshots, log files, etc.) and stating the date, time and the operating steps carried out.

Error classes

Software errors and malfunctions are divided into the following error classes:

Class
Definition
Criteria
Blocker
Preventing operation
The fault does not allow the device to be used for its main purpose.
Complete interruption of operations.
Central functions of the system cannot be used. All users of the
customer are affected. Bypass solutions are not available.
Example: Login is not possible.
Critical
Partial prevention of operation
Use in accordance with the essential purpose is guaranteed. However, there is a significant error in an important sub-function or the work is only guaranteed if extensive workarounds are used.
Partial interruption of operations. Central functions of the system cannot be used. A majority of the customer's users are affected. The customer can use an organizational or technical workaround solution for a limited time.
Example: An interface to an important third-party system (such as SAP) does not work.
Average
Obstructing operation
The use of the software in the sense of its essential purpose is guaranteed.
However, there are errors in sub-functions which make the work more difficult.
No interruption of service. Central functions of the system can be used. Disability of a few users of the customer. Bypass solutions are not necessary.
Example: Master data cannot be adjusted via the GUI.
Minor
Interfering operations  
Errors, which only marginally affect the use of the solution.
No interruption of service. Minor impairment due to avoidable additional work, lack of comfort. Bypass solutions are not necessary.
Example: spelling mistakes, errors in the documentation.

The defect classes refer both to defects that are detected during the warranty period and to those that are reported or detected during maintenance services. The defect classes Blocker and Critical are considered significant defects, the defect classes Average and Minor are considered insignificant defects.

Warranty and rectification of defects

The Provider guarantees that the services it provides have the agreed characteristics.

If there is a defect which consists in the fact that the software solution or the service to be provided does not have the agreed characteristics, the Provider shall remedy the defect free of charge within a reasonable period of time. At the Provider's discretion, the Provider may in particular describe a work-around, deliver an adapted version of the software or provide data cleansing scripts. Substantial defects will be corrected outside of the regular release planning, while minor defects will be corrected with the next or next but one regular release. If, after the analysis, it turns out that the malfunction was not caused by the software maintained or serviced by it, these services shall be remunerated separately.

The linkyard ag does not assume any warranty for third-party software and the services of third-party manufacturers.

Defects are to be reported within 30 calendar days of discovery. The warranty period is 6 months from delivery or provision of the service.

Services performed after expiry of the warranty period to remedy defects are subject to payment. A separate maintenance contract concluded between the contracting parties shall remain reserved.

Liability

The liability of the Provider towards the Customer is limited to gross negligence and intent as well as to direct damage. Liability for opportunity costs, loss of profit and consequential damages is excluded.

The provider assumes no liability for third-party software and the services of third-party manufacturers.

Insofar as the customer does not act in accordance with usage and integration requirements, he is liable for the damage suffered by himself, the provider or a third party.

Testing and acceptance

The contracting parties shall agree the acceptance conditions in the respective individual contract.
Unless otherwise agreed, the services are deemed to be accepted unless the customer reports defects in writing within 30 calendar days via the linkyard customer portal. Likewise, the services are considered accepted when the customer starts with the productive use of the software or software solution.
Furthermore, the service is considered accepted if the customer, although the prerequisites for this are given, refuses to participate in the acceptance test despite a reminder and a reasonable grace period.
If the inspection of the services reveals insignificant defects (cf. defect classes), the service is nevertheless accepted with reservation.
If there are significant defects, the acceptance test shall be postponed. The Provider shall remedy the defects found and invite the Customer to a new inspection.

Termination

Either party may terminate this Agreement at any time by giving three (3) months' notice to the other party at the end of any month. Prepaid fees will be refunded pro rata temporis in case of premature termination. This does not apply to third-party software, for which other conditions can be applied.

Contracts may be terminated without notice at any time in the event of serious breach of contract by the other contracting party. In the case of maintenance and support contracts, the remuneration in this case is calculated pro rata temporis, in the case of one-off remuneration pro rata on a basis of 12 months of use. The right to claim damages is reserved.

Changes to these provisions

The provider can change these terms at any time. The customer will be informed in advance. If the customer does not agree with the adjustments, he/she can explicitly declare to the provider within 30 calendar days after the announcement of the change to refrain from the services of the provider and terminate the contract with the provider. In this case, the termination of the contract is valid at the point in time at which the changed general terms and conditions come into force.

Severability clause

Should one or more of the above provisions be or become invalid, the validity of the remaining provisions of the contract shall remain unaffected. In this case, the ineffective provision shall be replaced by a provision that is analogous and as economically equivalent as possible.

Applicable law and place of jurisdiction

Swiss law is applicable to the contractual relationship, excluding the Vienna Convention on Contracts for the International Sale of Goods. In the event of conflicts and difficulties between the contractual partners, they shall attempt to find an amicable solution at management level and settle the dispute amicably.
If an amicable solution is not possible, the ordinary courts of the city of Bern shall have jurisdiction for all disputes arising from or in connection with this contract.


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