Remo DigitalAllgemeine Geschäftsbedingungen
1. Scope of application
1.1 These General Terms and Conditions govern the content, conclusion and execution of the orders within the framework of which Remo Digital GmbH, Bahnhofstrasse 59, CH-6312 Steinhausen (hereinafter referred to as "Remo Digital") provides services in the area of e-business and online communication to the contractual partner (hereinafter referred to as the "Customer") in the course of entrepreneurial business transactions.
1.2 Unless otherwise expressly stipulated, these General Terms and Conditions shall apply as an integral part of every offer made by Remo Digital GmbH or project contract concluded with the Customer, regardless of whether the contract was concluded in text form (such as by e-mail or fax) or in writing. The General Terms and Conditions shall also apply within the scope of future business relations between the parties without the need for separate inclusion in individual cases.
1.3 Deviating General Terms and Conditions of the Customer shall only be validly applied if they have been accepted by Remo Digital in writing. This also applies if Remo Digital should provide services without explicitly contradicting the Customer's General Terms and Conditions.
1.4 In the event of contradictions between the General Terms and Conditions, the Project Agreement shall take precedence over the General Terms and Conditions. The General Terms and Conditions take precedence over the Offer. Deviating agreements in the project contract remain reserved.
2.1. Remo Digital prepares an offer and submits it to the Customer for review.
2.2. Unless explicitly stated otherwise, Remo Digital remains bound to the offer for a maximum of 30 days from the date of dispatch.
2.3. A binding contract is concluded by the unconditional acceptance of the offer by the Customer or the conclusion of an additional project contract (in both cases hereinafter "Project Contract").
3. Project organization
3.1. Organizational structure
3.1.1. The parties agree in the project contract on an organization appropriate to the complexity of the project. This shall consist of at least one primary contact person (hereinafter referred to as "Project Manager") from each party and one representative of the same.
3.1.2. The Project Manager of Remo Digital shall inform the Customer at regular intervals about the progress of the project and obtain decisions from the Customer in the event of ambiguities.
3.1.3. For larger projects, a Steering Committee consisting of management representatives from both parties will also be established. Remo Digital shall keep brief minutes of the meetings of the Steering Committee, which shall be sent to the Customer within a reasonable period of time. In the absence of a written counter-report from the Customer within five working days, the minutes of the Steering Committee meeting shall be deemed approved.
3.1.4. Any dispute arising under a project contract shall first be submitted to the Steering Committee, which shall deal with the matter within three working days (escalation procedure).
3.2.1. Remo Digital is entitled to engage subcontractors (e.g. freelancers, third-party service providers) for the purpose of fulfilling its contractual obligations. Remo Digital is liable for the services of subcontractors - subject to the following provision under Sections 3.2.2 and 3.2.3 - as for its own services.
3.2.2. If, however, the Customer arranges for the use of a specific subcontractor and the subcontractor is commissioned in the name and for the account of Remo Digital, Remo Digital's responsibility is reduced to the careful instruction and supervision of this subcontractor.
3.2.3. To the extent that the Customer cannot assert any claims against Remo Digital as a result of the provision in Clause 3.2.2, Remo Digital assigns to the Customer the claims to which it is entitled against the commissioned third party, such as those arising from impossibility, delay, liability for defects or other breaches of duty.
4. Scope of services
4.1.1. Remo Digital shall provide the Services as set forth in the respective Project Agreement or in the Offer.
4.1.2. Unless otherwise stipulated in the Project Agreement, Remo Digital owes the provision of Services, which are performed by Remo Digital with due diligence taking into account the state of the art. Insofar as the performance of work and services is expressly agreed, Remo Digital owes the performance of the agreed specifications under the work and services contract. All other features of the scope of performance, functionalities or suitability for certain purposes assumed by the Customer but not expressly agreed with Remo Digital are not the subject of Remo Digital's obligations under the contract for work and services.
4.1.3. Unless otherwise agreed in the Project Contract, Remo Digital shall supply the usual developer notes as electronic documentation when creating Custom Software. No further documentation will be provided.
4.2. Changes to the scope of services
4.2.1. Either party may request changes to the agreed scope of services at any time with a detailed description of the desired changes.
4.2.2. In the event of change requests by the Customer, Remo Digital will inform the Customer within a reasonable period of time whether a change requested by the Customer is possible and what effects on the other services, the schedule and the previous remuneration are to be expected. In the case of change requests that require extensive review or outlays, Remo Digital is entitled to request that the Customer agree to bear the costs at the agreed rates before reviewing these requests.
4.2.3. If Remo Digital submits a change request to the Customer, the Customer will decide on this change request within 10 working days.
4.2.4. The binding contractual amendment requires, subject to deviating agreements, the form of the project contract in which the amended service was agreed.
5. Obligations of the customer to cooperate
5.1.1. The parties shall cooperate to the best of their ability in order to ensure that the project contract is fulfilled on time and in accordance with performance. This requires, among other things, special duties of cooperation on the part of the customer, which the customer must ensure.
5.1.2. In detail, this means that the Customer must in particular fulfill the following duties to cooperate:
- Ensuring a functional project organization on the part of the customer
- Provision of the necessary and agreed personnel resources with the required specialist knowledge and the necessary decision-making authority
- Ensuring adequate representation arrangements and an escalation procedure
- Ensuring the participation of decision makers in the regular project meetings
- Timely provision of all information useful and necessary for the project (e.g. change in the project organization or postponement of deadlines at the customer)
- Timely decision making and quick response to inquiries
- Timely delivery of customer content in digital form as well as guidelines required for the project (e.g., content guidelines, customer-specific fonts/colors)
- Provision of the working environment required for the project (e.g..: Access to the customer's premises and access to its systems and data).
- In the case of services under a contract for work and services, participation and involvement in functional testing and execution of acceptance (e.g. proper and timely testing) in accordance with defined acceptance procedure
- Ensuring data security, regular storage of data and data protection in the area of its systems.
5.2. Violation of duties to cooperate
5.2.1. The Customer is aware that a breach of the obligations to cooperate pursuant to clause 5.1 and pursuant to the respective project contract may have a detrimental effect on the provision of services by Remo Digital. Any additional expenses of Remo Digital caused by a breach of the Customer's obligation to cooperate shall be additionally compensated by the Customer in accordance with the agreed rates.
5.2.2. To the extent that Remo Digital is prevented from providing its contractual services at the agreed time or at the agreed cost due to the Customer's breach of its duty to cooperate, the relevant deadlines shall be extended or the agreed costs shall be adjusted in accordance with the additional effort caused.
5.2.3. Further legal rights of Remo Digital remain unaffected by the above provisions.
5.3.1. The agreed deadlines are to be understood as indicative deadlines, unless they have been defined as binding in the project contract. Remo Digital shall draw the Customer's attention to possible delays as soon as they become apparent to Remo Digital.
5.3.2. In case of missed deadlines for which Remo Digital is responsible, Remo Digital is in default after an unsuccessful reminder with a grace period of 30 days by the Customer. If Remo Digital cannot fulfill its obligations even after the expiry of this grace period, Remo Digital is liable to the Customer in application of clause 11 for the direct damage demonstrably incurred by the Customer due to the delay.
6.1.1. Remo Digital generally provides its Services on a time and material basis at the agreed rates. The effort calculated by Remo Digital within the framework of such an approach shall in principle be deemed to be a non-binding estimate of effort.
6.1.2. Alternatively, the Parties may agree on a fixed price. This is always understood to be binding. In the case of agreed fixed prices, the Customer shall be obliged to make a down payment of at least 30% of the agreed fixed price. Otherwise, partial remunerations shall be invoiced in accordance with the progress of the project.
6.1.3. Travel time shall be considered normal working time.
6.1.4. The remuneration can be defined according to hours or daily rates, whereby a daily rate comprises 8 working hours.
6.1.5. The rates applied by Remo Digital as well as the prices offered are in CHF plus statutory VAT and expenses.
6.2. Expenses and outlays
6.2.1. Expenses are to be reimbursed separately. Travel expenses for car journeys are charged at CHF 1/km. Hotel, train, flight and catering costs will be invoiced according to expenditure.
6.2.2. In case of longer out-of-town assignments of Remo Digital employees, the Customer and Remo Digital shall agree on travel and accommodation solutions appropriate to the project.
6.3.1. Invoices are generally issued on a monthly basis. In case of payment terms longer than 10 days, invoices will be issued every 14 days.
6.3.2. Invoices from Remo Digital are deemed to have been approved unless the Customer objects to them within 5 working days of receipt, stating the reasons for the objection.
6.3.3. Invoices from Remo Digital are due for payment within 10 days net. The interest on arrears is 6% p.a.
6.3.4. After repeated reminders Remo Digital is entitled to charge a reminder fee in the amount of CHF 30 plus the default interest.
6.3.4. Invoices are sent electronically. Upon request, they can also be sent by mail within Switzerland for a fee of CHF 20.- per invoice.
6.4. Price changes
6.4.1. Remo Digital is entitled to an appropriate increase of the agreed rates after written notice. Such an increase will come into effect at the earliest 3 months after the end of the month in which Remo Digital has notified the Customer of the change. It may not exceed the tariffs of the preceding twelve-month period by more than 10%.
7. Rights of use
7.1. Rights to the contractual services of Remo Digital
7.1.1. Upon full payment of the agreed remuneration, the Customer shall receive ownership of the contractual services developed by Remo Digital specifically for the Customer within the framework of the performance of the contract in accordance with the project contract, e.g. concepts, individual software, customization services, tools as well as documentation (hereinafter "Work Results"), including the copyrights and industrial property rights. Remo Digital shall hand over the source code of the Individual Software to the Customer after full payment of the remuneration owed. 7.1.2.
7.1.2. The Individual Software does not include the codes developed and used by Remo Digital in a standardized manner, which constitute the Remo Digital Code Library (Remo Digital Code Library Components, hereinafter "CLCs").
7.1.3. The Customer shall be granted the non-exclusive right to use the CLCs for the purpose agreed in the project contract without any time or place restrictions. All other rights, including copyrights to the CLCs, shall remain with Remo Digital.
7.2. Rights to third-party components
7.2.1. Insofar as Remo Digital owes the delivery of third party components, such as standard software from third parties or open source applications (hereinafter "Third Party Components"), Remo Digital undertakes to provide the Customer with a right of use (license) in accordance with the provisions of the rights holder in accordance with standard market distribution agreements with the rights holder.
7.2.2. The Customer's rights to third-party components are governed by the contractual provisions of the respective rights holder. The customer undertakes to comply with these provisions and to pay the agreed license fees. The warranty of quality or title for the third-party components is excluded.
7.2.3. Remo Digital shall draw the Customer's attention to the known cost consequences of third-party components at the time in its offers or cost estimates and in connection with any subsequent change requests.
8. Functional test and acceptance
8.1. Functional test
8.1.1. An acceptance test shall be carried out for agreed services under a contract for work and services (work results).
8.1.2. Acceptance of contractual work and services shall begin with a functional test by the customer. The functional test shall be deemed to have been successfully carried out if the work result essentially complies with the contractually agreed specifications and no defects are found which prevent acceptance in accordance with Clause 9.2.2. The type and scope of the functional test shall be agreed in the project contract. The functional test may also be carried out on partial results.
8.1.3. Unless otherwise agreed in the project contract, the functional test shall start no later than 5 working days after notification of readiness for acceptance to the customer and shall usually last 5 working days. At the end of the functional test, the results shall be recorded by the parties in a joint acceptance report.
8.2.1. For the purpose of acceptance, the defects detected during the functional test shall be classified as follows:
Class A, operation-preventing defect.
An operation-preventing defect exists if the use of the overall system is impossible or severely restricted. This means that the functions created cannot be used completely or correctly, or that they produce substantially incorrect results.
Class B, operation hindering defect
An operationally hindering defect exists if the use of the overall system is significantly restricted. In detail, this means that functions can be used, but the use is considerably impeded, e.g. due to defective, incomplete or not displayed values on the screen or printer.
Class C, Slight defect
A slight defect exists if the use of the overall system is possible with slight restrictions.
8.2.2. Acceptance is considered to be successfully completed if
- no class A defect occurs, and
- a maximum number of 10 class B defects is not exceeded.
- Defects of class C as well as 10 defects or less than 10 defects of class B, do not entitle the Customer to refuse acceptance. In such a case, the defects of classes B and C shall be remedied under the warranty.
8.2.3. The work result shall be deemed accepted upon completion of the acceptance test.
8.2.4. The commencement of productive use of the work result by the customer shall also be equivalent to acceptance.
8.2.5. If the customer does not carry out the acceptance within a reasonable period of grace, the work result shall also be deemed to have been accepted.
8.3. Failure and repetition of the acceptance procedure
8.3.1. After the acceptance Remo Digital shall carry out the rectification of defects detected during the acceptance test within a reasonable period of time and shall invite the Customer to a re-inspection after completion of the rectification.
8.3.2. If defects preventing acceptance (class A defects and more than 10 class B defects) are found again, the Customer is obliged to grant Remo Digital another reasonable period of grace, usually 30 working days, to make further improvements.
8.3.3. If Remo Digital is also not able to remedy the defects preventing acceptance within this grace period, the Customer is entitled to make a deduction from the agreed remuneration corresponding to the reduced value of the work result. The right to rescission is excluded.
9.1. Material defects
9.1.1. Remo Digital warrants that the Work Results, including the CLCs, comply with the service description agreed in the Project Contract. Remo Digital does not assume any warranty for services rendered within the meaning of the Swiss Code of Obligations 394.
9.1.2. The Customer shall document all defects that occur within 6 months after acceptance in a comprehensible and complete manner for Remo Digital and immediately notify Remo Digital of such defects by providing a detailed description.
9.1.3. In particular, functional impairments of the Work Results resulting from the Customer's hardware or software environment, defective data, insufficient cooperation, improper use or other circumstances originating from the Customer's area of responsibility do not constitute a defect. The warranty for material defects in the work results shall further require that the customer does not itself or through third parties modify them in an unauthorized or improper manner or use them contrary to the contractual specifications (e.g. on a different system environment) or the user documentation, unless the customer proves that the defect is independent thereof.
9.1.4. Insofar as there is a defect in the Work Results, Remo Digital is entitled and obligated, at its option, to subsequent performance in the form of rectification or replacement delivery within a reasonable period of time. If the supplementary performance finally fails (at least two attempts of supplementary performance per defect), the Customer may demand a reduction of the remuneration (abatement). Conversion is excluded. Clause 11 of these General Terms and Conditions shall apply to claims for damages and reimbursement of futile expenses due to defects.
9.2. Defects of title, industrial property rights of third parties
9.2.1. Remo Digital warrants to the Customer that the Work Results, including the CLCs, are free from third party copyrights and that, to the knowledge of Remo Digital, there are no other third party intellectual property rights thereto which would prevent the transfer of rights to the Customer under the Project Contract.
9.2.2. If third parties assert claims against the Customer based on the infringement of their copyrights or other proprietary rights as a result of the Customer's use of the Work Results in accordance with the Contract, the Customer shall immediately inform Remo Digital thereof in writing and in full. Remo Digital is entitled, but not obliged, to conduct the dispute with the third party in and out of court on its own. If Remo Digital makes use of this right, the Customer will support Remo Digital in this process to a reasonable extent free of charge. The Customer will not acknowledge the claims of the third party on his own initiative.
9.2.3. In case of defects of title Remo Digital shall provide a legally unobjectionable possibility of use of the Work Results, at Remo Digital's option by modification or replacement while preserving the essential contractually agreed functions, by acquisition of the necessary rights of use from the holder of the rights or in another suitable and reasonable way for the Customer.
9.2.4. Remo Digital will indemnify the Customer within the liability limits of Clause 11 of these General Terms and Conditions from any damages caused by the infringement of copyright or other intellectual property rights, if such damages are based on a defect of title for which Remo Digital is responsible. In all other respects, the provisions for material defects in Clause 10.1 of these General Terms and Conditions shall apply mutatis mutandis to the Customer's claims based on defects of title.
10.1. Remo Digital is liable for damages incurred and the reimbursement of futile expenses, regardless of the legal grounds, only to the following extent:
- in the case of malice, intent or gross negligence, to the full amount;
- in the event of the assumption of a guarantee in accordance with the promised protective purpose;
- in all other cases only in the event of a breach of a material contractual obligation, without which the achievement of the purpose of the contract would be jeopardized and on the fulfillment of which the customer may therefore regularly rely (so-called cardinal obligation), and limited to compensation for the foreseeable damage typical for the contract.
10.2. Notwithstanding the foregoing provisions, Remo Digital's liability for all cases of damage pursuant to Clause 11.1 lit. c) together is limited to the amount of the order value of the respective Project Contract concerned.
10.3. The above limitations of liability apply to the same extent in favor of Remo Digital's bodies, legal representatives, employees and subcontractors.
10.4. Liability for damages arising from injury to life, body or health as well as liability under the Product Liability Act shall remain unaffected by the above provisions.
11.1. The limitation period for all claims of the Customer due to defects as well as for damages and reimbursement of futile expenses is 6 months.
11.2. The statutory limitation of claims against Remo Digital due to intentional or grossly negligent breaches of duty, in the case of fraudulent concealment of a defect, the assumption of a guarantee and in the case of personal injury and due to the Product Liability Act remains unaffected.
12. Confidentiality, Data Protection
12.1. The parties shall mutually undertake to maintain the confidentiality of all documents and information which are not generally known and which relate to the business sphere of the other party and which become accessible to them during the preparation and execution of the project contract. Any statutory duties of disclosure shall remain reserved.
12.2. The parties themselves and, by way of a corresponding agreement, also their employees and auxiliary persons involved shall undertake to comply with the provisions of the relevant national data protection law and the European regulations on data protection. In particular, they shall ensure that they have taken all necessary technical and organizational measures to ensure that the personal data concerned in the performance of the contract are effectively protected. Personal data of which the parties gain mutual knowledge during the performance of the contract may be used exclusively for the existing contractual relationship and may not be processed, disclosed to third parties, sold or made available in any other way for purposes other than those mentioned above.
12.3. The confidentiality and data protection obligation shall remain in force even after termination of the contractual relationship as long as there is a justified interest in doing so.
13.1. Upon Customer's order and against appropriate additional remuneration, Remo Digital shall be available to Customer for appropriate training of Customer's employees involved with the Work Product.
14.1. Remo Digital offers to maintain and further develop the Work Results created by it upon Customer's order and against corresponding additional remuneration. Corresponding services by Remo Digital require the conclusion of a separate maintenance agreement between the Customer and Remo Digital.
15. Waiver of employment
15.1. During the term of a Project Agreement and for one year after the termination of the Project Agreement, the Parties shall not actively solicit each other's employees and shall also hire such employees of the other Party who apply on their own initiative only with the prior consent of the other Party.
15.2. In the event of a breach of this provision, the breaching party shall owe the breaching party a contractual penalty in the amount of one year's income (gross) of the employee concerned, but not less than CHF 50,000, subject to any damages exceeding this amount. Even after payment of the contractual penalty and the exceeding damage, the breaching party shall additionally remain entitled to demand that the breaching party remedy the breach of contract.
16.1. Remo Digital is entitled until further notice to name the Customer only as a reference on its website and when quoting for projects of other customers. Remo Digital is entitled to mention the Customer in the context of press releases, lectures, case studies, professional articles and other marketing measures after prior agreement and written declaration of consent by the Customer.
17. Duration and termination of the contract
17.1. Unless otherwise agreed in the contract, the contract shall enter into force upon its conclusion and shall terminate upon expiration of time or upon fulfillment of the contractual performance obligations.
17.2. If the Customer terminates a Contract prematurely, Remo Digital is entitled at least to full compensation for the time spent and all expenses incurred up to the time of termination at the rates applied by Remo Digital at the time of performance. Remo Digital reserves the right to claim further damages, in particular due to unavoidable idle time or lost profit.
18. Final provisions
18.1. Place of performance
18.1.1. The place of performance for all obligations that may arise from a project contract is the location of the Remo Digital branch that concluded the project contract in question.
18.2. Written form
18.2.1. Amendments and supplements to these General Terms and Conditions must be agreed in writing and shall only apply to the Project Agreement containing this agreement. This shall also apply to the cancellation of this written form requirement.
19. Severability Clause
19.1. If individual provisions of these General Terms and Conditions prove to be invalid or illegal in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the provision in question shall be replaced by a valid provision that is as economically equivalent as possible. In the event of loopholes, the above provision shall apply accordingly.
20. Applicable law and place of jurisdiction
20.1. The legal relations of the parties, including the project contracts, shall be governed by Swiss law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
20.2. The parties agree that the exclusive place of jurisdiction shall be the location of the Remo Digital branch office that concluded the relevant Project Agreement.
20.3. The Customer hereby accepts these General Terms and Conditions as an integral part of its Project Contracts with Remo Digital.