GTC Software and Services

General terms and conditions for the provision and maintenance of software

1.    Scope of Application

These General Terms and Conditions («GTCS») govern the contractual relationship between HR Campus AG («SUPPLIER») and the Customer («CUSTOMER») in connection with the provision and maintenance of standard software by the SUPPLIER. The contractual relationship between the SUPPLIER and the CUSTOMER is based on an Agreement between the SUPPLIER and the CUSTOMER (the «AGREEMENT»). These GTCS form an integral part of this AGREEMENT. The AGREEMENT and these GTCS are hereinafter jointly referred to as the Contract (the «CONTRACT»). The CONTRACT is subdivided into a sub-contract concerning the provision of software (the «LICENCE CONTRACT») and a sub-contract concerning the maintenance of software (the «MAINTENANCE CONTRACT»). Where provisions of these GTCS do not expressly refer to the LICENCE CONTRACT or the MAINTENANCE CONTRACT, they shall apply to both sub-contracts.

2.    Subject of the Contract

2.1.    The SUPPLIER shall deliver the standard software specified in the CONTRACT (the «Software») in the version specified in the CONTRACT and grant the CUSTOMER a right of use in accordance with Clause 3 below. A separate Contract is concluded for any integration, implementation and adaptation services.

2.2.    Furthermore, the SUPPLIER undertakes to maintain the software and to offer the CUSTOMER a customer service.

3.    Software Licence

3.1.    The SUPPLIER grants the CUSTOMER a non-exclusive, non-transferable right to use the software within the framework of the LICENCE CONTRACT. The content, scope and duration of this right of use can be found in the CONTRACT.

3.2.    The CUSTOMER is not permitted to copy, decompile, process, pass on the software or components of the software or parts thereof, so that a data centre can be operated or the software or parts thereof can be passed on or made available to third parties. In addition, the CUSTOMER is prohibited from providing third parties with access to the software or parts thereof, from using the software or parts thereof outside of the scope of the CONTRACT.

3.3.    In the case of demo versions of the software that the CUSTOMER may use in the context of the initiation of the CONTRACT,  the CUSTOMER’S right of use is limited to actions that serve to determine the condition of the software and the suitability for the CUSTOMER’S operation. In addition, edits and in particular a productive operation of the software or the preparation for the productive operation by means of the demo version are not permitted.

3.4.    If a new version is made available to the CUSTOMER within the framework of a repair or maintenance of the Software, and the CUSTOMER uses it productively, the Customer’s rights to the previous version granted by the CONTRACT expire.

3.5.    The rights to the data stored, entered or imported by the CUSTOMER are exclusively assigned to the CUSTOMER.

4.    Maintenance and Customer Service

4.1.    The SUPPLIER shall assume the maintenance of the software within the framework of the MAINTENANCE CONTRACT. Maintenance includes the correction of errors and the optimisation of existing functionalities by providing updates, patches, new versions or new releases.

4.2.    The SUPPLIER shall provide the CUSTOMER with a customer service if necessary within the framework of a separate support contract. Customer service is the first point of contact after the commissioning of the software by the CUSTOMER. It is available to the CUSTOMER for general questions, user support («Second-Level Support»), in the event of a malfunction and failure of the application, for questions and problems during operation, and for reporting errors. «First-Level Support» is organised internally by the CUSTOMER.

4.3.    Customer service qualifies errors or requests for further development and prioritises the CUSTOMER’S error messages. Errors are managed in the SUPPLIER’S support system.

5.    Remuneration and Payment Terms

5.1.    The CUSTOMER must pay the remuneration specified in the AGREEMENT.

5.2.    The remuneration for the services of the SUPPLIER under the MAINTENANCE CONTRACT shall be paid in advance per calendar year. In the case of contracts concluded during the year, the remuneration must be paid pro rata temporis for the current calendar year in advance.

5.3.    The fee for the software licence will be invoiced after the SUPPLIER signs the AGREEMENT.

5.4.    All prices are exclusive of statutory VAT. The payment deadline is 30 days from the invoice date. Within the payment period, the CUSTOMER can raise justified objections to the invoice in text form (including email). After the expiry of the payment period, the invoice is deemed accepted without reservation. After expiry of the payment period, the CUSTOMER is in default of payment and must pay default interest of 5% p.a. In the event of default by the CUSTOMER, the SUPPLIER shall also have the right to suspend its services for the time being after a final ten-day payment period has been granted in writing and to block access to the software and suspend all services. The fees for maintenance and operation are also owed for blocked access and discontinued services. Additional expenses arising from this shall be borne by the CUSTOMER.

5.5.    All bank expenses (in particular fees for foreign transfers) shall be borne by the CUSTOMER.

5.6.    Additional licences and associated recurring fees will be invoiced pro rata temporis from the date of notification by the CUSTOMER until the end of the current invoice interval. Unreported licences and associated recurring costs will be invoiced retroactively from the month of recording of the additional users.

6.    Further Obligations of the CUSTOMER

6.1.    The CUSTOMER has informed itself about the essential functional scope of the software before conclusion of the CONTRACT. The risk that the software does not meet the wishes and needs of the CUSTOMER is borne exclusively by the CUSTOMER. Technical requirements and possible applications are communicated upon request.

6.2.    The CUSTOMER is obligated to carry out any action that is necessary for the fulfilment of the CONTRACT from the perspective of the SUPPLIER. In particular, the CUSTOMER shall ensure that the SUPPLIER has all necessary information, data, documents and personnel available in a timely manner or within a reasonable period of time in order to enable the SUPPLIER to fulfil its Contractual services and obligations in a timely manner. The CUSTOMER shall ensure the necessary infrastructure and work environment of the users in accordance with the specifications of the SUPPLIER. It is its responsibility to ensure the proper operation of the software, for example by providing the appropriate IT infrastructure and Internet bandwidth.

6.3.    The CUSTOMER shall appoint a representative and his/her deputy authorised to make binding decisions and instructions.

6.4.    If the CUSTOMER violates its obligations to cooperate, any obligation on the part of the SUPPLIER to comply with promised deadlines and assured availabilities shall expire. Any liability of the SUPPLIER for damages resulting from a breach of the CUSTOMER’S cooperation obligations is completely excluded. The CUSTOMER must pay any additional costs incurred as a result of the breach of the duty to cooperate. Any obligation to pay compensation shall only arise once the SUPPLIER has issued a warning to the CUSTOMER.

6.5.    The CUSTOMER shall thoroughly test the Software for defects and for usability in the specific situation before using the Software operationally. This also applies to software that it receives in the context of supplementary performance or maintenance.

6.6.    The CUSTOMER is obligated to immediately report any actual use that exceeds the agreed licenced scope of use. In addition, SUPPLIERS and manufacturers of the software («PROVIDERS») are entitled to check the contractual conformity of the use of the services, in particular compliance with the agreed parameters of the assessment basis. If the SUPPLIER, PROVIDER or CUSTOMER determines such overuse of the agreed parameters of the assessment basis, the CUSTOMER is obliged to pay an additional fee from the point at which the overuse exists. In the event of an increase in the agreed licenced scope of use, the CUSTOMER is also obliged to pay an additional fee. As a result, the CUSTOMER will receive a current overview of the newly licenced scope of use as well as the licence fees, which will become part of the CONTRACT  without the CUSTOMER’S signature. An overuse not reported within an appropriate period of time or refusal to pay the licence fees newly incurred due to the overuse or the increase may result in complete or partial restriction of access to the software.

6.7.    The CUSTOMER is obligated to use the software provided to it exclusively within the meaning of the CONTRACT and the right of use pursuant to Clause 3 of these GTCs.

7.    Intellectual Property Rights

7.1.    All rights to the software, software adaptations, concepts, know-how, information, data, files, documents that are made available to the CUSTOMER by the SUPPLIER within the framework of contract negotiations or in connection with the execution of the CONTRACT are the exclusive intellectual property of the SUPPLIER or the respective rights holder («pre-existing intellectual property rights»). The protected contents may not be reproduced or made accessible to third parties. If a Contract is not concluded, it must be returned or irretrievably deleted, depending on the instructions of the SUPPLIER, and may not be used further.

7.2.    Unless the CONTRACT expressly provides otherwise, all intellectual property rights to all software and software adaptations (including any further developments or error corrections), documentation, concepts, methods, work results and all other documents and results created within the scope of the CONTRACT remain exclusively with the SUPPLIER or the respective rights holders. This shall also apply if these results are the result of the cooperation or specification of the CUSTOMER.

7.3.    The CUSTOMER receives the unlimited, free-of-charge and non-exclusive right to exercise the rights pursuant to Clause 7.2 for internal business purposes. The CUSTOMER has no right to pass on the work results in any form to third parties.

8.    Delivery and Installation

8.1.    The delivery is made by the SUPPLIER providing the Software to the CUSTOMER for download at the time agreed in the CONTRACT or handing it over to the CUSTOMER on a data carrier. With the delivery, the SUPPLIER has fulfilled the LICENCE AGREEMENT.

8.2.    The CUSTOMER shall install the Software itself. There is no obligation on the part of the SUPPLIER to assist the CUSTOMER with the installation, unless this is stated in a separate contract.

9.    Audit and Reporting Obligation

9.1.    The CUSTOMER has an obligation to check and report all deliveries and services of the SUPPLIER.

9.2.    The CUSTOMER shall report problems with the software directly and in text form (including e-mail). The contact person and his/her deputy are authorised to report.

9.3.    The SUPPLIER is entitled to submit work results to the CUSTOMER FOR ACCEPTANCE. The acceptance procedure is based on the applicable provisions of the CONTRACT. If nothing has been stipulated in the CONTRACT , and if the CUSTOMER does not complain about any significant defects within the acceptance period, the work results shall be deemed accepted, provided that the SUPPLIER has reminded the CUSTOMER once in text form (including email) to carry out the acceptance procedure. In addition, the work results shall also be deemed accepted if the CUSTOMER has used the work results in production for more than one month and does not formally refuse their acceptance.

10.    Warranty

10.1.    In connection with the LICENCE AGREEMENT with regard to the software, the SUPPLIER shall provide only a guarantee of functionality in accordance with the product documentation published by the PROVIDER.

10.2.    Any warranty rights must be asserted against the PROVIDER. In the event of a warranty claim, the SUPPLIER shall exercise the SUPPLIER’S warranty rights for the CUSTOMER in accordance with the CONTRACT between the SUPPLIER and the PROVIDER. Any further warranty is excluded; in particular, the SUPPLIER does not guarantee freedom from errors or the constant availability of the software. All other warranty rights of the CUSTOMER are excluded.

10.3.    The warranty period is twelve (12) months and begins with the delivery. In the event that the delivery is unjustifiably refused by the CUSTOMER, the warranty period begins with provision by the SUPPLIER.
If the SUPPLIER provides services within the scope of troubleshooting or error elimination, although it is not obligated to do so, the SUPPLIER can demand remuneration in accordance with the current price list. Any obligation to pay compensation arises only from the information of the CUSTOMER about the performance of such actions despite the absence of such an obligation by the SUPPLIER.
Any further warranty of the SUPPLIER is excluded.

11.    Liability

11.1.    The SUPPLIER shall be liable without limitation for damages caused intentionally or through gross negligence by the SUPPLIER. The SUPPLIER IS also liable without limitation for any personal injury.

11.2.    In addition, the SUPPLIER shall be liable exclusively for direct damages that have been demonstrably incurred by the CUSTOMER in connection with the contractually agreed performance if it does not prove that it is not at fault.

11.3.    The liability of the SUPPLIER is, insofar as legally permissible, limited in total to the remuneration that the CUSTOMER has paid to it for the service whose fulfilment by the SUPPLIER has caused the damages in accordance with the CONTRACT in the twelve (12) months preceding the damage event, i.e. at most what is owed for a contract year as remuneration and a maximum of CHF 100’000.00.

11.4.    The liability of the SUPPLIER for pure financial losses, indirect damages or consequential damages such as loss of profit, unrealised savings, personal expenses of the CUSTOMER such as additional personnel costs, recourse claims of third parties, default damages, damages from data loss, data damages or costs resulting from the involvement of third parties by the CUSTOMER is excluded insofar as legally permissible.

11.5.    The SUPPLIER is liable for the conduct of the auxiliary persons involved to the same extent as for its own. The SUPPLIER assumes neither responsibility nor liability for the conduct of substitutes.

12.    Force Majeure

Neither the SUPPLIER nor the CUSTOMER shall be liable for force majeure. If the PARTIES are unable to comply with their contractual obligations despite all due diligence due to force majeure such as natural events (such as storm, lightning, fire, earthquake), epidemics, pandemics, warlike events, strikes, viral attacks, disruptions to the public transport or communication infrastructure, the fulfilment of the CONTRACT or the deadline for the fulfilment of the CONTRACT shall be postponed in accordance with the event that has occurred. A disruption of the communication infrastructure used by the CUSTOMER is not a case of force majeure; such a disruption has no influence on the CUSTOMER’S obligation to pay the remuneration.

13.    Confidentiality and Data Protection

13.1.    Each PARTY undertakes to keep confidential all information, data, files and documentation which it receives from the other PARTY in connection with the fulfilment of the CONTRACT and in which there is a confidentiality interest of the other Party, in particular information about trade and business secrets (including the ideas underlying the SUPPLIER'S services, know-how [including technical details in connection with software provided by the SUPPLIER], concepts and procedures), as well as any information about CUSTOMERS of the CUSTOMER, and to make it accessible to third parties only with the express consent of the other PARTY.

13.2.    The obligation to maintain secrecy does not apply if the information in question:

  • was demonstrably known to the informed contractual partner prior to the notification;
  • was known to the public before the notification, was generally accessible or became known or generally accessible to the public after the notification without the involvement or fault of the informed contractual partner, or
  • essentially corresponds to information that was disclosed or made accessible to the informed contractual partner at any time by an authorised third party.

13.3.    The obligation to maintain secrecy shall exist beyond the end of the CONTRACT .

13.4.    The protection of the CUSTOMER’S data is guaranteed in accordance with the applicable data protection law.

13.5.    The SUPPLIER has the right to identify the CUSTOMER on its website with logo and in its other communication as a reference.

14.    Termination of Maintenance Contract

14.1.    Unless otherwise specified in the AGREEMENT, the MAINTENANCE CONTRACT is concluded for a fixed term of one year. If it is not terminated three (3) months before the expiry of the term of the CONTRACT, it shall automatically be extended by another year.

14.2.    The SUPPLIER may adjust the maintenance prices at the end of each calendar year. The announcement takes place three months before the end of the year and results in an extraordinary right of termination in compliance with a two-month notice period. The right of termination must be exercised within four (4) weeks after receipt of the announcement regarding the increase in prices; after that it is forfeited. The SUPPLIER shall refer to this right of termination and the consequences thereof in the announcement.

15.    Extraordinary Termination

The Parties reserve the right to extraordinary termination of the CONTRACT or individual appendices of the AGREEMENT in the event of a significant breach of Contract by the other Party, which includes, among other things, the default of the CUSTOMER, and without observing a notice period. However, an extraordinary termination as a result of a breach of contract is only permitted after an unused 30-day recovery period has elapsed. Furthermore, the Parties reserve the right to extraordinary termination without notice in the following cases: (i) liquidation or bankruptcy of the other Party, (ii) filing of a request for moratorium by the other Party, (iii) pledging or seizure of significant assets of the other Party.

16.    Final Provisions

16.1.    The CONTRACT replaces agreements, correspondence, declarations or negotiations about the subject matter of the Contract in all parts, unless reference is made in writing in the OFFER or the AGREEMENT. This also applies to offers, specifications and tenders.

16.2.    Amendments and/or supplements to the CONTRACT and in particular regulations deviating from the GTCs must be made in writing in order to be valid in accordance with the law (Art. 12 et seq. of the Swiss Code of Obligations [OR]). Electronic signatures (such as DocuSign) are equivalent to the written form and formally valid in this respect. Exceptions to the written form requirement are expressly stipulated in the GTCs or in the CONTRACT (e.g. Clause 6.6 of the GTCs). This applies in particular to the amendment of the written form requirement. Verbal side agreements are not valid. Terminations (if provided), warnings and the setting of deadlines by the CUSTOMER must also be made in text form (including e-mail) in order to be valid.

16.3.    The SUPPLIER reserves the right to amend these GTCs at any time. Such information will be communicated to the CUSTOMER in a suitable manner and applies without written objection within one month of notification, but in any case in the event of supplementation or extension of the AGREEMENT or when concluding a new Agreement between the CUSTOMER and the SUPPLIER.

16.4.    Should individual provisions of the CONTRACT be or become invalid or void, this shall not affect the remaining valid provisions of the CONTRACT or the validity of the CONTRACT as a whole. Instead of the invalid provision, a valid provision shall apply which comes as close as possible to the economic meaning of the invalid provision. The same applies in the event of a loophole.

16.5.    The CUSTOMER is prohibited from assigning its claims and rights arising from the CONTRACT to third parties.

16.6.    The CONTRACT is subject exclusively to substantive Swiss law under exclusion of the Vienna Convention on Contracts for the International Sale of Goods (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, CISG) and the Federal Law on International Private Law. The exclusive place of jurisdiction for all disputes arising from or in connection with this Contract is Dübendorf.

Version, July 2021

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