General Terms and Conditions VM Data AG
1. scope of application
These general terms and conditions (hereinafter referred to as "GTC") are an integral part of the contract and apply to all legal relationships between VM Data AG.
Individual agreements (e.g. agreed service descriptions, managed services framework agreements plus appendices, service framework agreements plus appendices, software and license agreements, agreements on the procurement of hardware or software, support and maintenance agreements, etc.; hereinafter "IVA") take precedence over the GTC in the event of contradictions.
By accepting a contract offer from VM Data AG, the customer declares that it accepts these GTC without reservation and that any existing general terms and conditions of business of its own are waived.
If the customer purchases services from VM Data AG prior to the conclusion of a corresponding IVA, the effects of such an IVA will come into force retroactively to the date of purchase of the said services. Similarly, if the customer obtains services from VM Data AG prior to acceptance of the GTC, the GTC will come into force retroactively to the date on which these services are obtained.
2 Services provided by VM Data AG
The specification of the individual services and products and their availability are governed by the respective IVA.
In the case of all legal relationships which have as their main or only partial object the procurement of hardware or software manufactured or distributed by third parties (hereinafter referred to as "third-party products"), VM Data AG shall be entitled at its discretion either to purchase the corresponding third-party products in its own name and for its own account and to resell them to the customer (hereinafter "resale of third-party products") or to order the third-party products from the manufacturer or distributor in the name of the customer for the customer's account (hereinafter "brokerage of third-party products"), for which the customer grants the corresponding powers of attorney upon acceptance of these GTC.
If, in addition to the services to be provided by VM Data AG in accordance with the IVA, subordinate services from third-party providers are also necessary in order to properly achieve a result desired by the customer (e.g. the installation of Internet connections by a telecom provider, etc.; hereinafter "Third-Party Services"), the customer grants VM Data AG the authority to order such services directly from the corresponding third-party provider for the customer.
3 Acceptance of offers
Unless otherwise specified, quotations from VM Data AG are valid for 10 days. VM Data AG will accept late contract acceptances at its discretion and will in any case confirm details of delivery and price in writing.
4. prices
Prices result from the respective IVA, in particular the order confirmation letters issued by VM Data AG. Other price quotations, e.g. those in brochures, price lists or other documents, are not binding.
Changes in tax or other relevant rates (in particular value added tax, hereinafter "VAT") entitle VM Data AG to adjust its rates without prior notice. Unless otherwise indicated, all prices are exclusive of VAT.
All costs and expenses in connection with packaging, insurance and transport of products to the customer or to the place of delivery specified by the customer will be borne in full by the customer.
In the absence of an express agreement to the contrary, the travel time of organs and employees of VM Data AG or of other auxiliary persons or substitutes called in will be regarded as working time. Expenses incurred, such as overnight accommodation and travel expenses, will be charged to the customer on a time and material basis. For work performed between 8 p.m. and 8 a.m., as well as on Saturdays, a surcharge of 50%, for work on Sundays and public holidays a surcharge of 100% will be charged.
In the event of resale of third-party products purchased in foreign currency, VM Data AG will bear the exchange rate risk, provided that the purchased products do not deviate by more than 3% from the price originally offered. If a change in the exchange rate results in a larger adjustment of the corresponding purchased products, the currency risk will be borne in full by the customer. VM Data AG can correct the price accordingly in the final invoice. The customer also acknowledges that any commissions, discounts or other price reductions granted by the manufacturer or distributor on the basis of a framework agreement (e.g. partnership agreement) with VM Data AG will not be passed on to the customer. By accepting these General Terms and Conditions, the customer expressly declares his agreement to this.
In the case of permanent services (e.g. rental, maintenance), 1/30 of the monthly costs will be invoiced for each day of the month (pro rata temporis).
The costs of third-party services are to be borne by the customer and are generally invoiced directly to the customer by the relevant third-party provider or, if applicable, by VM Data AG.
5 Terms of payment
The customer undertakes to pay the invoiced amount by the due date stated on the invoice form. In the absence of a due date, the payment period is generally 10 days from the date of the invoice. Within 10 days from the date of the invoice, the customer may raise objections to the invoice in writing, stating the reasons. Thereafter, the invoice shall be deemed accepted without reservation. If the customer fails to meet his payment obligation within the payment period, he will be in default on expiry of this period without further reminder. VM Data AG is authorized to assign all monetary claims and other claims against the customer to third parties at any time.
If the customer defaults, VM Data AG may immediately discontinue all services without further notice. The customer must also grant VM Data AG access to uninstall and take away any equipment used by the customer but not transferred to its ownership and therefore still belonging to VM Data AG or a third party (manufacturer, distributor, third-party supplier). Payments due under the IVA remain due for payment even during the suspension of services by VM Data AG.
VM Data AG is entitled to demand advance payment (invoicing and payment prior to performance) or security from the customer. If a required advance payment or security is not made on time, VM Data AG may terminate the contract without notice and without compensation. The same regulation also applies in the event that insolvency proceedings (e.g. moratorium or opening of bankruptcy proceedings) are opened against the customer.
The customer may not offset amounts owed to VM Data AG against its own claims without the consent of VM Data AG.
6. reservation of title
Ownership of purchased items is not transferred to the customer until the purchase price has been paid in full. VM Data AG, or in the case of the brokerage of third-party products also the corresponding manufacturer or distributor, or also VM Data AG on their behalf, is entitled to have a corresponding reservation entered in the relevant reservation of title register. By accepting these General Terms and Conditions, the customer declares its agreement in all essential points to the registration of the reservation of title. In addition, the customer is obligated, upon first request, to again confirm in writing to VM Data AG its consent to the registration of the retention of title in all material respects (Art. 4 Para. 4 of the Federal Court Ordinance on the Registration of Retentions of Title). The customer is obliged to provide VM Data AG at all times with its current data such as name and address data and to notify VM Data AG immediately in writing of any changes.
7 Inspection, notification of defects and acceptance
The customer is obliged to inspect products and services supplied by VM Data AG immediately after delivery or collection for their condition and to report any defects immediately. Defects that could not be detected even after careful inspection must also be reported immediately after their discovery. If third-party products are procured, the complaint must be made both to VM Data AG and to the respective manufacturer or distributor. If the products and services in question are not inspected or notified in good time, they will be deemed to have been approved and any warranty claims will be deemed to have been forfeited.
If, in the case of services or work performed by VM Data AG, partial or total acceptance has been agreed in the respective IVA, this will take place in accordance with the dates specified in the IVA, but at the latest within 20 days of the invitation to the acceptance. In this case, a notification of defects must be made on the acceptance date at the latest. With regard to defects not reported by that time, the corresponding service and the services not affected by the defect shall be deemed to have been accepted. The same shall apply in the event of productive use of the service. If defects which cannot be detected during careful acceptance are not reported immediately after their discovery, or if the customer violates his obligation to cooperate during acceptance, the corresponding service shall also be deemed to have been approved or any rights to defects shall be deemed to have been forfeited. If only minor defects are reported during partial or total acceptance, the customer may withhold a maximum of 10% of the amount due with this acceptance (taking into account the payment period) until the defects reported have been remedied. The customer acknowledges that between the invitation to accept partial services and their acceptance by the customer, VM Data AG's services are generally suspended and a delay in the acceptance of a partial service caused by the customer may have a corresponding effect on the agreed final date, for which the customer is responsible.
8. warranty
In the event of a defective object of purchase or work, VM Data AG may rectify the defective object or supply the customer with an appropriate replacement. The customer shall only be entitled to any reduction or conversion rights in the event of repeated failure to rectify the defect. However, VM Data AG is not obliged to rectify the defect. Any agreed warranty does not extend to consumables and operating materials.
There is no entitlement to warranty if the customer interferes with systems and products - namely configurations - without the consent of VM Data AG, or in the event of defects resulting from improper or inadequate storage, installation, use or maintenance of the products by the customer or for other reasons for which VM Data AG is not responsible.
Claims for warranty against VM Data AG become time-barred within three months of delivery or performance, in the case of agreed acceptance from the date of the corresponding partial or total acceptance.
In the case of third-party products, there is no claim for warranty against VM Data AG. A warranty claim must be directed solely against the respective manufacturer or distributor and is determined by the latter's warranty provisions. Upon request, VM Data AG will provide the customer with the relevant provisions prior to acceptance of these GTC or prior to conclusion of an IVA. However, VM Data AG must be informed of the assertion of such claims. In the event of the resale of third-party products, VM Data AG undertakes accordingly to assign its own warranty claims against the manufacturer or distributor to the customer. Expenses for any warranty repairs carried out by VM Data AG on third-party products, such as the replacement of products, their packaging and transport, as well as any services for new installations/configurations will be invoiced to the customer.
9 Data protection, confidentiality and legal regulations
VM Data AG undertakes to process customer data with care and to comply with the provisions of data protection. However, VM Data AG is permitted to internally process and use customer data related to the respective legal relationship, such as names and addresses, type and quantity of products and services purchased, corresponding serial numbers, etc., or data required for the procurement of hardware, software or licenses, and also to pass this data on to VM Data AG's business partners for this purpose.
VM Data AG is expressly entitled to use the customer as a reference vis-à-vis potential customers. The reference is limited to general information. Any information beyond this requires the customer's consent.
Compliance with the provisions of data protection law in connection with the operation of the systems supported or to be installed by VM Data AG is the responsibility of the customer.
The customer shall treat as strictly confidential all information received from VM Data AG which is designated as confidential, secret or similar or which is of such quality that it can be considered confidential. In particular, the customer shall keep codes, login names as well as passwords and the like secret and shall be liable for all resulting damage in the event of non-compliance.
10. export regulations
Customer hereby acknowledges that certain products sold to Customer may be subject to export tax laws and other regulations of the United States, the European Union or other countries. Customer agrees to comply fully with such laws and regulations.
11 Other Legal Requirements
The customer is responsible for compliance with all statutory regulations for the operation of the systems supported or to be installed by VM Data AG. In particular, this also applies to the operational, technical and building police requirements as well as to the safety precautions to ensure proper functioning of the systems.
12 Liability
VM Data AG is only liable for direct damage, and only if the customer can prove that this damage was caused by VM Data AG intentionally or through gross negligence. In the case of third-party products, VM Data AG is liable only in the event of intent. In the case of authorized transfer of a service, VM Data AG is only liable for due care in the selection and instruction of substitutes. Liability for auxiliary persons called in by VM Data AG is excluded in full - insofar as this is legally permissible.
VM Data AG is in no case liable for indirect or consequential damages, including loss of production, loss of sales, loss of profit, and loss of or damage to records or data of the customer or third parties. This exclusion of liability also applies in the event that these damages were foreseeable or VM Data AG or the customer was made aware of the possible occurrence of such damages. VM Data AG also excludes all liability for damages resulting from the customer's failure to fulfill its contractual obligations (in particular the obligation to cooperate in an error-free and timely manner) as well as for external services not provided by VM Data AG, namely services provided by the customer, third-party services, and services provided by other providers who have a contractual relationship with the customer.
The liability of VM Data AG is in any case limited to the price of those objects of purchase, work or services that are connected with the damaging event.
13 Industrial property rights
The customer warrants that all licenses or data supplied or made available by him do not violate any license or property rights of third parties. In particular, the customer is responsible for the correct licensing of the software to be provided by him; VM Data AG has no obligation to verify this.
The customer shall always defend itself against claims by third parties in this regard at its own expense and risk. If third parties make such claims against VM Data AG, the customer must in any case indemnify VM Data AG and advance the corresponding costs (e.g. court and lawyer's fees) appropriately. The customer is also obliged, at the request of VM Data AG, to assume the conduct of any legal proceedings at its own expense or to ensure that other measures are taken to settle the legal dispute.
The customer is aware that when purchasing software (third-party products or customized software) for the purpose of proper use of the same, he must generally agree to the license conditions of third parties (manufacturers or distributors).
14 Changes to the IVA or the GTC
Changes of the IVA require in any case the written form. An exception to this is in the case of changes or additions to the order by the customer, which can also be validly agreed if (i) VM Data AG confirms the corresponding changes or additions in writing and the customer does not revoke this confirmation within 10 days of receipt or (ii) VM Data AG accepts the change and the customer has paid for the corresponding service.
15 Other agreements
The customer may not transfer the IVA itself or any rights and obligations arising therefrom to third parties without the written consent of VM Data AG.
16 Partial invalidity
Should one or more provisions of the IVA or the GTC prove to be invalid, the corresponding provisions will be replaced or supplemented by a provision that comes closest to the economic purpose of the original provision. The validity of the remaining provisions shall remain unaffected.
17 Jurisdiction and applicable law
All legal relationships between the customer and VM Data AG are subject exclusively to Swiss law to the exclusion of the Vienna Sales Convention.
The exclusive place of jurisdiction for all disputes arising from or in connection with the legal relationships between the customer and VM Data AG is Zurich, subject to the reservation of other mandatory places of jurisdiction under federal law. However, VM Data AG is also authorized to assert its rights at the customer's domicile or before any other competent authority in the absence of a jurisdiction agreement.
