General Terms and Conditions

A. GENERAL

1. Subject matter and scope of application

1.1 These General Terms and Conditions (hereafter “GTCs”) shall cover services provided and deliveries made by Acceleris AG, a company limited by Shares with registered office in Zollikofen, Bern (Switzerland) (hereafter “Acceleris”).

1.2 In the event a conflict arises between any provisions, the order of priority regarding the conflicting provisions shall be as follows: 1. Individual agreement, 2. Specific provisions in the GTCs, and then 3. General provisions in the GTCs. Any general terms and conditions of the customer are hereby opted out of and excluded.

1.3 The present GTCs shall supersede all previous versions of any and all GTCs. These GTCs and any future amendments made to them shall enter into force on the earliest possible effective date for a termination following the notification of the amendment.

2. Offer

2.1 The products and services published and disclosed by Acceleris in catalogues, in documents, on its website etc., in particular any and all prices and technical details mentioned, shall not be binding.

2.2 Unless otherwise stated or agreed, the written offers submitted by Acceleris are valid for thirty days from the date of the offer.

2.3 Orders shall only be accepted if placed in written or electronic form.

3. Conclusion of the agreement

3.1 The agreement between Acceleris and the customer shall be concluded upon dispatch of the individual agreement or of the order confirmation by Acceleris, upon delivery/performance of the agreement or when the written order confirmation by the customer (acceptance of the offer) is received by Acceleris. In the event the customer’s order deviates in any way from
the offer made by Acceleris, said offer shall only be binding on Acceleris if the points of deviation are confirmed in writing by Acceleris.

3.2 As soon as the order is placed, Acceleris undertakes to provide performance and/or delivery and the customer undertakes to accept performance and pay for the contractual performance and the goods ordered.

4. Specification of times and dates

Any times or dates specified by Acceleris for delivery, installation and start-up operations shall be deemed, subject to a written assurance, to be non-binding references.

5. Prices and payment conditions

5.1 Unless otherwise agreed, prices shall be in Swiss francs and shall not include value added tax, levies, duties, transport costs, packaging, insurance, installation, start-up operations, training and user support.

5.2 The customer shall additionally provide compensation for costs and expenses that are not covered by the contractual agreement (compensation of costs and expenses).

5.3 Time spent travelling to relevant locations shall be invoiced as time worked. Expenses incurred by Acceleris shall be compensated additionally.

5.4 Invoices from Acceleris are to be paid within thirty days, unless otherwise stated or agreed. Upon expiry of this time limit for payment, the customer shall automatically be in default. In all cases where no written objection is made to the invoice within the time limit for payment, the invoice shall be deemed to have been accepted.

5.5 As a general rule, services are invoiced by Acceleris in advance. In the case of ongoing services spanning a period of more than two months, Acceleris may submit interim invoices on a monthly basis.

5.6 Acceleris shall also have the right to demand that a down payment of up to half the total price be made when the contractual agreement is entered into and to demand that part payments be made over the duration of the business relationship to the value of services already rendered.

5.7 Any claims held by the customer against Acceleris may not be offset by the customer against sums owed to Acceleris.

6. Customer’s default in payment

6.1 Acceleris may claim default interest of 6% if the customer is in default with regard to the payment of an invoice from Acceleris.

6.2 In addition, Acceleris shall be entitled to all rights pursuant to Art. 107 et seq. of the Swiss Code of Obligations (Obligationenrecht, hereafter: “CO”).

6.3 If Acceleris foregoes performance under the contract, Acceleris can reclaim all products delivered, submit an invoice for the full extent of the agreed compensation for performance already rendered under contract and demand compensation for the depreciation of the products or reasonable compensation for use of the services/products.

6.4 If Acceleris no longer renders performance under the contract, Acceleris can additionally demand lump-sum damages for the loss of future performance. This shall be in an amount of 50% of the agreed fee still outstanding. The foregoing shall be without any prejudice to further claims in damages.

7. Customer’s duties to assist in the performance of the agreement

7.1 The customer must see to it, at its own expense, that all conditions are in place to enable Acceleris to render the performance owed under contract. The customer’s duties to assist cover all measures, actions and preparations resulting from the scope of performance under the contract, in particular those mentioned in the concept.

7.2 If the customer breaches its duties to assist, then it must bear all resulting damage and detriment itself e.g. as a result of delays and additional expenditure.

8. Customer’s default in accepting performance

8.1 If the customer does not accept performance of the contract, then after setting a reasonable extension of the time limit, Acceleris can either:

  • Rely on the portion of the contract performed up to that point in time and claim the compensation agreed for it, but forego subsequent performance, or
  • Withdraw from the contractual agreement, reclaim all products delivered, submit an invoice for the full extent of the agreed compensation for performance that has already been rendered and demand compensation for the depreciation of the products or reasonable compensation for use of the services/products.

8.2 Furthermore, Acceleris can additionally demand lump-sum damages for the loss of future performance. This shall be in an amount of 50% of the agreed fee still outstanding. The foregoing shall be without any prejudice to further claims in damages.

9. Performance

Acceleris can either render performance of the contract itself or have performance rendered, in whole or in part, by a third party.

10. Warranty of tittle and warranty as to quality / liability

10.1 Liability on the part of Acceleris is excluded to the extent legally permitted. In particular, the statutory warranty rights of the customer against Acceleris in respect of title and as to quality are hereby excluded.

10.2 Acceleris shall only be liable for personal injury or damage to property in accordance with the rules of product liability law. Any further liability is excluded to the extent legally permitted.

10.3 Acceleris shall not be liable for its associates used for assistance (Art. 101(2) CO). Acceleris accepts no liability for delayed deliveries of goods and equipment. Liability for direct loss or consequential loss (in particular, for loss of profit) is excluded by Acceleris to the extent permitted.

10.4 Acceleris shall only remove defects, free of charge, from defective contractual services or replace defective goods, or parts thereof, delivered by Acceleris. Goods for which a replacement has been provided shall then become the property of Acceleris. However, in no case shall the expense incurred in making the replacement exceed the fair value of the entire performance originally agreed under the contract.

10.5 Acceleris shall remove the defect / replace the goods within the warranty period stated on the invoice. If no period is stated on the invoice, then a period of three months from the time of delivery shall apply to goods and services.

10.6 The customer is to immediately check the contractual performance and immediately notify Acceleris in writing of any identifiable defects. Any hidden defects ascertained during the warranty period are to be notified in writing immediately after discovery. No removal of defect / replacement can be provided for defects notified after expiry of the warranty period.

10.7 If the customer fails to make the relevant notification within 20 days of delivery, the products and services shall be deemed to be free of any defects in all their functions and the delivery shall be deemed to be approved.

10.8 If the customer does not treat the contractual performance rendered in a proper manner, makes modifications or repairs without proper authority or has any of the aforementioned done by a third party not engaged by Acceleris, then the customer shall lose all rights based on any warranties or liability.

10.9 Any potential warranties or warranty rights granted by third parties shall be assigned by Acceleris to the customer in each individual case. In such a case, Acceleris shall inform the customer of the third party’s terms and conditions of warranty.

11. Rights in work products, intangible assets, and intellectual property

11.1 All rights in the work products created by Acceleris or by third parties engaged by Acceleris shall remain with Acceleris.

11.2 The customer shall receive a non-exclusive and non-transferable right of use therein, which shall not be subject to any time limit.

12. Security and retention of title

12.1 Acceleris shall retain title in the goods sold up until the customer has fulfilled its payment obligation in full (retention of title). The customer undertakes to notify third parties, in particular landlords or lessors, of such retention of title, as well as undertaking not to sell, dispose of, or encumber goods subject to a reservation of title and to treat them with due care.

12.2 The grant of a licence for use shall be made subject to the proviso that licence fees are paid in full. Should the customer fail to pay the licence fees, then the customer shall lose the rights of use in the software that has not been paid for and is under an obligation to delete all copies of the software and to return data storage devices and documentation to Acceleris.

13. Term of the agreement

13.1 An agreement geared at one-time performance (e.g. delivery of hardware or software; provision of a one-time service) shall cease upon performance being duly and properly rendered.

13.2 Continuing contractual obligations (e.g. provision of hardware or software, hosting, provision of further ongoing services) shall cease upon the expiry of the agreed term for the contract or upon termination being effected. Termination shall be effected by way of a letter sent via registered post.

13.3 Unless otherwise agreed in the individual agreement, agreements shall be ordinarily terminable subject to a notice period of six months, with termination becoming effective at the end of the relevant month.

13.4 The parties shall retain the right to effect extraordinary termination without notice for good cause [ausserordentliche, fristlose Kündigung aus wichtigem Grund].

14. Confidentiality and non-solicitation

14.1 Acceleris and the customer mutually undertake to maintain confidentiality with respect to all confidential data, records and documents. This duty shall continue to apply even after the cessation of the contractual relationship between the parties.

14.2 The customer undertakes that during the term of the agreement and for one year thereafter, it will not solicit, without the written consent of Acceleris, any employees, agents or associates used for assistance who are involved in a relevant project. In the event of a breach of this obligation, the customer shall be liable to pay a penalty of CHF 50,000, with such penalty having no discharging effect. Acceleris reserves the right to claim compensation for further damage suffered. In addition, Acceleris can also bring a claim for performance of the obligation.

15. Data protection

15.1 The parties note that personal data relating to the parties, their staff and third parties engaged by them, which is made accessible to the parties as part of their contractual relationship, can be made subject to data protection rules of Swiss federal law or that of the cantons. The parties shall make the necessary organisational and technical arrangements for adherence to data protection rules.

15.2 The customer declares its consent to the fact that such data may be used in the context of the contractual relationship and may be disclosed for this purpose to third parties in Switzerland or abroad.

16. Assignment

Rights and duties arising from this agreement may only be assigned to third parties with the written consent of the other party to this agreement. The aforementioned rule shall not apply to the assignment of the agreement by Acceleris to a successor in title or affiliated entity.

17. Further provisions

17.1 If there is a requirement of writing in the contractual relationship between Acceleris and the customer, any form of writing which may be verified (e.g. fax, email) shall suffice.

17.2 Any waiver of the written form requirement agreed between Acceleris and the customer as part of their contractual relationship may itself only be made in writing.

17.3 If any of the provisions of these GTCs should turn out to be invalid, a provision shall be deemed to have been agreed in its place which lawfully fits the purpose intended or reflects the purpose intended
as closely as possible. The remaining provisions of these GTCs shall remain valid.

18. Applicable law and place of jurisdiction

18.1 The agreement and the legal relationships between the parties, including those that do not directly result from the agreement, shall be governed by the substantive law of Switzerland to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (“Vienna Sales Convention”).

18.2 The courts at the place where Acceleris has its registered office shall have jurisdiction to hear claims arising from the agreement and all other legal relationships between the parties. Acceleris shall have the right to also institute legal proceedings against the customer at any other statutory place of jurisdiction.

B. SALE OF HARDWARE

19. Subject matter of the agreement and delivery

19.1 Acceleris sells hardware of third party suppliers and manufacturers. The hardware sold by Acceleris to the customer shall be specified in the individual agreement or in the order confirmation. Acceleris shall deliver the hardware to the customer’s place of business, provided said place of business is located in Switzerland or the Principality of Liechtenstein. Export deliveries to other countries shall be made pursuant to a special agreement thereon.

19.2 The cost of delivery to a place of business located in Switzerland or in the Principality of Liechtenstein is included in the purchase price. Installation costs are not included in the purchase price.

19.3 Dispatch of the hardware shall be by post, by an Acceleris transport vehicle or via a logistics partner. Acceleris shall insure the goods in transit.

C. SALE OF SOFTWARE (LICENCES)

20. Subject matter of the agreement and delivery

20.1 Acceleris sells software of third-party suppliers and manufacturers (licensors). The software sold by Acceleris to the customer shall be specified in the individual agreement or in the order confirmation.

20.2 The scope and content of the software licence shall emerge from the contractual terms and conditions of the third-party supplier and manufacturer (licensing terms), which shall accompany the software product.

20.3 Unless the licensing terms of the third-party supplier and manufacturer state otherwise, each case of a breach of the terms of use for the software shall render the customer liable for the payment of a penalty, without discharging effect, in an amount equivalent to twice that of the licence fee. This shall be without prejudice to the claiming of further damages and the imposition of sanctions under criminal law.

21. Provision and installation [of software]

21.1 Acceleris shall inform the customer on the manner in which the software will be provided to the customer (handover of a data storage device, download, licence key etc.). Any documentation shall only be handed over to the customer if such documentation has been provided by the third-party supplier or manufacturer. Otherwise, it can be obtained by download.

21.2 The installation of software has to be agreed in the form of an additional act of performance on the part of Acceleris and remuneration then has to be provided for same.

22. Intellectual property rights

The customer recognises the intellectual property rights, in particular the copyright, of the third-party supplier and manufacturer in programs and documentation and the customer shall be under an obligation to ensure that proprietary notices of the thirdparty supplier and manufacturer are not modified and that they are placed on all complete and partial copies made in the course of the due and proper use of the intellectual property. In addition, the customer undertakes not to give access or disclose, in whole or in part, the software and documentation to third parties.

23. Warranty of tittle and warranty as to quality

23.1 The customer’s warranty rights shall emerge from the contractual terms and conditions of the third-party supplier and manufacturer. Such warranty rights of the customer shall only have implications for Acceleris to the sole extent that Acceleris shall demand the warranty rights from the third-party supplier and manufacturer pursuant to the contractual terms and conditions of the third-party supplier and manufacturer. In the event that the manufacturer and/or supplier does not
voluntarily comply with its duties under any warranty, then Acceleris shall assign all claims arising from the warranty rights to the customer for enforcement. Any further warranty or liability on the part of Acceleris is excluded, to the extent legally permitted.

23.2 The warranty rights shall cease to apply in all cases in which an intellectual propertyrelated claim is based on the fact that the customer has modified the licensed material, has used the licensed material in conjunction with other programs or data, or has used said material under different conditions than the conditions of use and operation defined in the accompanying information.

D. SERVICES

24. Subject matter of the agreement

24.1 Acceleris shall provide services in the context of IT services, such as the installation of hardware and software, setting customer-specific preferences for the use of software, rollouts, data transfer, implementing projects, project launch and start-up operations, carrying out tests, training, system integration, system support and system maintenance.

24.2 The services to be specifically provided by Acceleris shall be set out in the individual agreement or in the order confirmation.

25. Place of performance

25.1 As a general rule, services shall be provided either at the customer’s premises or at the place of business of Acceleris.

25.2 Acceleris shall have the right to provide technical services using the framework of remote services, i.e. via a telecommunications network.

E. INFRASTRUCTURAL SERVICES

26. Subject matter of the agreement

26.1 Acceleris shall provide storage space and server services on an infrastructure connected to the internet, within the scope of the service selected by the customer. In particular, Acceleris offers cloud/hosting, outsourcing, firewall and network services, along with storage services.

26.2 The specific services to be provided by Acceleris shall be set out in the individual agreement or in the order confirmation.

26.3 Performance by Acceleris

26.4 Acceleris shall provide its services carefully and professionally. Acceleris shall protect its systems from viruses and spyware using state-of-the-art systems.

26.5 Acceleris accepts no liability for the improper use of its communications infrastructure by third parties or for interference by third parties (including computer viruses). Acceleris cannot guarantee that its services will be available without interruption via internet or other networks or that the networks will transmit the data requested by the customer in a correct manner and without delay.

27. Duties of the customer / use

27.1 The customer undertakes to only use Acceleris services in connection with data networks and components that have been approved by Acceleris for use in advance. Acceleris shall be entitled to immediately disconnect unapproved components from the Acceleris network and/or to cease the provision of services until such time as the unapproved components have been replaced and/or removed.

27.2 The customer shall be under an obligation to refrain from doing anything that could place system and network security at risk.

27.3 As a general rule, resource-intensive background software and downloads are not allowed. Acceleris shall be at liberty to set limits for the use of resources at any time and at its own full discretion.

27.4 Acceleris shall be entitled to cease the provision of services and/or block access by the customer if the use by the customer compromises the operative performance of the service. If the breach of these duties by the customer results in damage or loss (damage to property or economic loss), the customer shall hold Acceleris harmless for the full extent of any such damage or loss.

27.5 The customer is prohibited from providing third parties with access to Acceleris services and from allowing third parties to use said services.

27.6 The customer shall be under an obligation to report all possible service interferences and interruptions to Acceleris without undue delay and to assist Acceleris with the removal of the interference, where possible. The customer shall bear the costs of removing the interference where the cause is attributable to conduct of the customer in breach of its contractual obligations.

28. Responsibility for data and data protection

28.1 The customer alone is responsible for maintaining the data and programs hosted by Acceleris. In particular, the customer alone is responsible for ensuring that the data to be backed up is assigned to the agreed backup area.

28.2 Similarly, the customer alone is responsible for the content of information hosted by Acceleris and coming from the customer itself and from third parties in communication with the customer. Any disputes between the customer and third parties in connection with hosted data are solely a matter for the customer. If Acceleris receives queries/complaints, these will be forwarded by Acceleris to the customer to be dealt with. In such a case, Acceleris shall be entitled to invoice the customer for time and effort expended in connection with the query/complaint, with the customer being charged based on the time taken.

28.3 Data will be stored by Acceleris exclusively in Switzerland. Acceleris is subject to the rules of Swiss data protection law. The parties shall make the necessary organisational and technical arrangements for adherence to data protection rules.

29. Improper use

29.1 Use by the customer is only permitted in accordance with the applicable legal basis and in compliance with orders issued by public authorities and courts of law.

29.2 In all cases the following is not permitted and shall constitute a breach of contract:

  • Use of the infrastructure/services in the course of committing, participating in or being involved in a criminal offence. The
    customer shall take appropriate action and measures to preclude third parties from using the infrastructure/services of Acceleris for criminal activity.
  • Disseminating and/or disclosing content that is criminal or unlawful under the principles of civil law (such as information harming the personal rights of another, containing racial discrimination, interfering with freedom of belief and conscience etc.).
  • Storing and/or disseminating / disclosing of content that is protected under intellectual property law (in particular, content protected by copyright, trademark or patent law).

30. Licences and intellectual property

30.1 Acceleris shall acquire and maintain licences to the software that it uses to provide its services. The customer shall be under an obligation to communicate all information to Acceleris that is necessary for licensing (including any changes in such information).

30.2 The customer shall receive a non-exclusive and non-transferable right of use in the software components provided to it, which shall be valid for the term of the relevant agreement.

30.3 In the event the use of any software is called into question as a result of thirdparty claims, then Acceleris may provide the customer with other equivalent software components for use.

30.4 If hosting services of Acceleris are being used and such services require software licences, the licences will normally be provided by Acceleris.

30.5 If the licences are not provided by Acceleris then the customer shall be under an obligation to obtain the licences from the licensor. Acceleris shall supply all the information required in order to do so. In such a case, Acceleris accepts no liability for copyright infringements by the customer. The customer shall hold Acceleris harmless, if the software has not been correctly licensed.