General Standard Terms and Conditions (GSTC) for Accarda AG Services
1. Services Offered by Accarda
Accarda offers its customers a complete assortment of services, as modules or full service. The range of services includes predominantly the development and operation of customer (credit) card and marketing database systems, consulting and support (including CRM), transaction processing, invoicing and the production of direct mails - all on the basis of special IT applications (network, system, software, middle ware). The company provides high quality, state-of-the-art services that meet relevant standards and recommendations.
2. Scope of Applicability
2.1 These General Standard Terms and Conditions (hereafter referred to as "GSTC") govern the relationships between customers and Accarda.
2.2 These GSTC apply to completion, content and processing of contracts, including contract offers for the provision of services by Accarda. They serve as an integral component of the respective customer contracts and supplement the agreements contained therein.
2.3 They are considered to be accepted upon acceptance of the Accarda offer.
2.4 Binding tenders from Accarda are valid for 90 days after the date of issue, unless clearly specified otherwise. Oral agreements apply only with legally valid, written and signed confirmation.
3.1 Accarda will inform the customer of progress and immediately notify him of any circumstances that may jeopardize fulfilment of the contract.
3.2 Accarda may transfer the agency business to third parties. In its function as general contractor, Accarda remains responsible for the provision of services; otherwise it is liable only for the careful selection and instruction of third parties.
3.3 The customer grants Accarda, its auxiliary persons and commissioned third parties any access to its premises that may be required. The customer will provide free of charge any documents, files, data and resources needed as well as suitable places to work. He will also ensure that information that Accarda needs to fulfil the contract is immediately given to Accarda, auxiliary persons or commissioned third parties.
3.4 The customer will make all preparations and cooperate in any way required to facilitate provision of the services of Accarda, and he will refrain from actions that hinder or jeopardize the provision.
3.5 All data, data media and documents (such as receipts, online transactions, cassette tapes, disks, magnetic tapes, CDs) provided by the customer for processing must meet the minimum requirements set forth by Accarda. The consequences of noncompliant or defective data, data media and documents will be born by the customer. Unless the contract contains an agreement to the contrary, Accarda can charge the customer for the cost of rectification, at the currently applicable rates.
3.6 Inasmuch as Accarda has agreed to deadlines, Accarda will not be liable for any delays due to circumstances for which it is not responsible, particularly later changes or additions to the services specified in the contract or delay of the work caused by the customer or third parties.
3.7 When delays are the fault of Accarda, the parties will agree to a modification to the schedule. If such an agreement is not reached, the customer has the right to set Accarda a grace period of 30 days. If the grace period is not complied with, the customer may immediately terminate the contract. Item 8.4 ff. of these GSTC applies.
3.8 Accarda will alter programs licensed for the customer only with the explicit consent of the customer, even in cases in which laws are revised or changes to normal practice would justify such measures. Program modifications that become necessary due to conversion to a new operating system or new data processing equipment pose an exception.
4.1 Accarda will provide the contractual services at fixed prices or by time and effort required. The tasks assigned to Accarda will be performed for the agreed rates. The prices do not include applicable taxes or other fees, unless otherwise agreed in the customer contract.
4.2 Unless otherwise agreed in the customer contract, the necessary expenditures (e.g. paper, blank CDs, magnetic tapes, transportation costs, postage, telephone, etc.) and expenses will be invoiced at the agreed rate, as will be any statutory charges.
4.3 Remuneration will be due in accordance with the terms of payment stipulated on the invoice or pursuant to an express written agreement. If the customer delays payment, Accarda has the right to charge penal interest without further warning. Credits cannot be offset against invoices without the express consent of Accarda.
4.4 Accarda has the right to stipulate an appropriate advance payment or to stipulate securing of part or all of the remuneration. A letter of credit from a Swiss bank is an example of adequate security.
4.5 Any complaints regarding invoices have to be lodged with Accarda in writing within ten workdays; otherwise the invoice is considered to be approved.
4.6 Accarda reserves the right to change its prices on January 1 of any year to adapt to index changes (consumer price index pursuant to the publication of the Federal Office for Industry, Trade and Labour). The modified prices will be indicated no later than with the first invoice of the new year.
4.7 Price adjustments due to later changes in the services specified in the contract or related to amendments in legal provisions (taxes, overtime pay, etc.) remain subject to change.
5. Intellectual Property and Trademark Rights
5.1 For the duration of the contract, the customer is granted the non-transferable, non-exclusive right to use the services. The content and scope of this right are specified in the customer contract.
5.2 All rights to intellectual property with respect to services provided by Accarda remain with Accarda or the authorized third party. To the extent that third parties have rights, Accarda will ensure that the parties have been granted the respective rights of use and sale.
5.3 All other rights of ownership, copyright and use pertaining to the programs and program components developed by Accarda, as well as all organization and program documents generated, remain the intellectual property of Accarda AG, regardless of whether the customer has ordered such services.
5.4 Accarda reserves the right to specifically use again ideas, concepts and procedures developed in the course of contract fulfilment. This right applies regardless of whether the customer's employees participated in development. The confidentiality agreements pursuant to item 6 of these GSTC remain applicable.
5.5 In the event that a third party claims alleged infringement of trademark rights, the customer is obligated to immediately inform Accarda and to transfer to Accarda the right to take legal action. This applies particularly to the right to negotiate a settlement. Accarda's liability ceases, if the customer does not immediately inform Accarda of filed claims, does not transfer the right to take legal action or does not support Accarda to the best ability in any legal proceedings.
6.1 The contracting parties agree to treat as confidential all information labelled as confidential. The obligation to maintain confidentiality takes effect when contract negotiations begin and continues beyond termination of the contract. The contracting partners extend these obligations to their employees and any subcontractors.
6.2 If a contracting partner violates the confidentiality clause, he will owe the other partner a contractual penalty, unless he can prove that he is not at fault. The penalty will be 10% of total remuneration but will not exceed CHF 30,000.00 per case. Payment of the contractual penalty does not release a party from the obligation to maintain confidentiality; however, it will be credited to the damages to be paid.
6.3 With the customer's consent, Accarda can make public project-related services for advertising purposes and publications, whereby such consent may be denied only for important reasons. Special consent is not required for notifications intended only for internal distribution, for disclosures required by legal and accounting regulations, or for communications that contain only the existence of the contractual relationship between the parties, particularly the mention of the contractual relationship (including company logo) with the customer in the respective Accarda reference lists.
7. Data Protection
7.1 In regard to data protection and data storage, the contracting partners will comply with the federal law regarding data protection and the respective ordinance as well as with relevant regulations regarding protection of privacy (Swiss Civil Code).
7.2 Customer data given to Accarda remain the property of the customer, unless otherwise agreed. Accarda will process the data provided by the customer as agreed per contract and will ensure that they are treated as confidential at all times and returned to the customer upon completion of work.
8. Warranty and Liability of Accarda
8.1. Accarda is responsible to the customer for the performance of services pursuant to the contract and agrees to do so with the utmost care. When breach of contract occurs, Accarda is liable only for the proven damage to the extent that Accarda cannot prove it is not at fault.
8.2 If due to the fault of Accarda services are not performed correctly, Accarda is obligated to immediately and free of charge remedy such faults, to the exclusion of all other claims.
8.3 Complaints regarding incorrect performance of services must be lodged in writing within 14 days of delivery.
8.4 Accarda is liable for damage that its employees cause during performance of the contractual services, whether due to intent or gross negligence.
8.5 Any further liability is excluded in every case, particularly indirect and collateral damages as well as for consequential damages such as loss of profits, unrealized savings, additional expenses or claims from third parties.
8.6 In any case, Accarda's liability is limited to the value of the total remuneration, not to exceed CHF 100,000.00.
9. Customer's Obligation to Inspect Services
9.1 In his own best interest, the customer will inspect all services provided by Accarda. If it is not possible to inspect the services provided and to reconcile the processed data with the reference figures specified in advance, or if the customer chooses not to do so, the customer accepts the results delivered by Accarda as complete and sufficient for fulfilment of the contract.
9.2 In the case of periodic data processing, any deficiencies must be reported in writing before the next processing time.
9.3 If the complaint is not filed in due form and time, the respective services of Accarda are considered to be approved.
10. Termination of the Contract
10.1 The contract is valid for an indefinite period. It can be terminated by either party via registered letter, with notice of six months to the end of a year of validity. Contracts that specify a duration or minimum duration pose an exception.
10.2 Either party has the right to terminate the contract without notice, if the other contracting party breaches its contractual obligations and fails to fulfil the obligations within 30 days of written notice. The right to claim damages remains unaffected.
10.3 If the customer terminates the contract by disregarding the specified grace period or termination period, Accarda has the right to invoice the services already performed as well as the assumed expenses that would have been incurred by the next termination date.
10.4 If the customer does not fulfil his obligations pursuant to the contract despite two reminders, if he is in arrears with payments or if there are other important circumstances that seem to jeopardize Accarda's claims, Accarda has to right to cease performance of services.
10.5 If the customer's assets are at serious risk or are deteriorating, or if an application to begin insolvency or bankruptcy proceedings against him has been submitted, or if the customer is in the process of debt restructuring, Accarda has the right to unilaterally terminate the contract via registered letter, without notice and without compensation.
All notifications specified in the customer contract or these GSTC are to be sent in written form to the address of the contracting parties and should be addressed to the contact person stated in the contract or the persons who signed the contract.
12. Enticing Away Accarda Employees
For the duration of one year after completion of the contractual services, the customer agrees to neither hire employees of Accarda, its partners and subcontractors nor to allow them to work directly or indirectly for him outside of the mandate agreed with Accarda.
13. Transfer of Rights and Duties
No party may assign rights and duties from this contract to a third party without prior written consent from the other party. Item 3.2 of these GSTC is not affected.
14. Force Majeure
If despite due diligence a party cannot fulfil its contractual obligations due to force majeure such as natural phenomena of particular intensity, acts of war, strike, unforeseen regulatory restrictions, etc., performance or the deadline for fulfilment of the contract is extended according to the event, provided the party affected by force majeure immediately informs the other party of the circumstances.
15. Applicable Law and Place of Jurisdiction
15.1 Swiss law applies to the contractual relationship.
15.2 Sole place of jurisdiction is Brüttisellen/Zurich.