General Terms and Conditions
These General Terms and Conditions (the General Terms) apply to all services which are provided by AX AG, Zurich, Switzerland (AX) to its customers (each a Customer) to meet specified requirements, in particular any software development services, any amendment, conversion or parametrization of software and any migration and data processing services. Work Result shall mean the result of such services.
The scope of the services to be provided by AX as well as the relevant specifications shall be determined by the parties in a separate agreement or offer letter (the Agreement). These General Terms form an integral part of any Agreement between AX and the Customer. Unless explicitly agreed otherwise, any delivery, amendment or parametrization of software shall be made in object code format. All time indications are to be considered as non-binding targets, unless expressly agreed as binding milestones in the Agreement. Should AX realize that the targeted timeline can no longer be met, it will inform the Customer accordingly, in order to discuss in good faith the necessary adjustments to the timeline.
The Customer and AX may request changes to the services at any time. In case of the change request, AX will outline the implications of such request on the services, prices and the timeline to the Customer (the Analysis). In case of the change request by Customer, the costs of the Analysis by AX shall be borne by Customer. The elaboration of an offer by AX is however free of charge. In case a change request by the Customer is likely to have significant impact on the project, AX may ask that the Customer advances the costs of such Analysis prior to making the Analysis. Irrespective of the foregoing, changes to the services shall only be valid if agreed between AX and the Customer in writing.
AX has the right to appoint subcontractors. AX will ensure that its subcontractors are bound by appropriate confidentiality obligations and remains responsible for the performance of services by its subcontractors as if it had performed the relevant services itself.
In addition to any corporation and information obligations specified in the Agreement, the Customer shall: (a) provide the hardware including operating systems and other software; (b) provide appropriately qualified and experienced personnel as contact persons for AX in relation to the services and participate in the project management; (c) provide access to all relevant data, documents and workspace; (d) participate in the testing and acceptance of services in accordance with clause 6 of these General Terms; and (e) promptly inform AX of all events and circumstances which may adversely impact the provision of services by AX, the timeline and/or the Work Results. AX shall not be liable to the Customer to the extent any non-performance under the Agreement is due to a violation by the Customer its cooperation and information obligations and, irrespective of the fee structure agreed between the parties, the Customer shall reimburse AX for any additional time and expenditure spent due to such violation.
Unless explicitly stated otherwise in the Agreement, the services (including travelling time) shall be reimbursed by the Customer on time and material spent basis at the rates specified in the Agreement. Any cost estimate provided by AX in its offer and/or the Agreement shall serve as basis for planning only. Should AX realise that the initial cost estimate will likely be exceeded by more than 15%, AX will inform the Customer accordingly, in order to discuss in good faith modifications to the services to reduce expected costs.
The Customer shall reimburse AX for expenses reasonably incurred in connection with the provision of the services (e.g. travelling costs, translation costs, postal charges).
Unless explicitly stated otherwise in the Agreement, all amounts payable by the Customer shall be exclusive of VAT which shall be paid by the Customer to AX at the relevant rate.
Subject to any specific payment schedule agreed between the parties, remuneration for services and expenses will be invoiced monthly in arrears and shall be payable by the Customer within 10 days of receipt of the relevant invoice.
Upon payment of all fees and expenses, the Customer will obtain ownership of a copy of the Work Results.
Any proprietary rights owned by AX prior to commencement of the services, in particular intellectual property and other rights in as well as know-how relating to AX’s software development tools, software libraries, engines, utilities, and other software code as well as any modifications, updates or enhancements thereof (together AX Technology) will continue to be exclusively owned by AX. Upon payment of all fees and expenses, the Customer acquires a non-exclusive, royalty free license to use AX Technology to the extent necessary to exploit the Work Results. Intellectual property rights in the Work Results developed and/or created specifically for the Customer (excluding AX Technology) shall pertain to both AX and the Customer and each of AX and the Customer are entitled to exploit such rights independently of each other.
AX shall have the right to freely utilize ideas, findings, concepts and procedures relating to the processing of information it has (by itself or together with the Customer) discovered and/or developed in the course of providing the services for its business activities including the provision of services to other customers.
The parties shall agree on the dates and appropriate procedure for testing and acceptance. If practicable, the individual components of the Work Results shall be tested and accepted on an on-going basis. The acceptance and any defects shall be documented in a written protocol to be executed by both parties. If no procedure for testing and acceptance has been agreed, the Customer shall be responsible for testing and notify AX of any defects in writing within 30 days of delivery of the relevant Work Result or individual component thereof. Irrespective of the foregoing, Work Results or individual components thereof shall be deemed accepted if (i) due to reasons attributable to the Customer, testing and acceptance could not occur within 30 days of delivery of the respective Work Results or individual components thereof or (ii) such Work Results or individual components are used productively by the Customer. Following (deemed) acceptance, AX shall no longer be liable for defects which could have been identified during proper testing and acceptance unless such defects are listed in the acceptance protocol or (if the Customer is responsible for testing) have previously been notified to AX in writing. The guarantee period for hidden defects shall be 12 months from final delivery of the Work Results. Any liability of AX for hidden defects shall be subject to such defect having been notified by the Customer within 10 days of discovery.
Work Results are defective if at the time of acceptance they (i) do not meet the specifications stated in the Agreement or (ii) the lack of or the particular design of technical features render the Work Results unfit for or significantly impair their agreed (or in absence of such agreement, the reasonably foreseeable) use. A defect is critical if it impedes or significantly impairs the use of core functionalities of the Work Results as a whole. The Customer can request AX to rectify such defects within a reasonable time period of no less than 30 days. If acceptance of a Work Result or individual component thereof is unsuccessful for the third time, the Customer (i) can request a refund of an equitable portion of the fee attributable to the Work Result or individual component thereof or (ii) in case of a critical defect only, can terminate the Agreement in which case the Agreement shall be reversed (rückabgewickelt). This section 7.1 states the Customer’s sole and exclusive remedy with respect to defective Work Results.
In the event the agreed upon use of any Work Result infringes upon the intellectual property rights of a third party, AX will at its option, either (i) modify the Work Results so as to avoid the alleged infringement, (ii) obtain a license permitting the Customer’s use of the Work Results to continue unimpeded, or (iii) refund an equitable portion of the fee attributable to the Work Results. AX will not have any liability under this clause 7 to the extent the alleged infringement (a) is attributable to the Customer’s modification of the Work Results or the Customer’s combination of the Work Results with other software, products, processes, data and/or materials not provided or approved by AX or (b) is the result of AX’ compliance with the Customer’s instruction to modify the Work Result. AX’s liability under this clause 7 shall further be subject to the Customer (i) promptly notifying AX of any third party claim for infringement of intellectual property rights in connection with the agreed upon use of the Work Results and (ii) granting AX (at AX’s option) sole authority to defend or settle the third party claim and reasonable assistance in defending the claim (in which case AX will pay all costs and damages finally awarded or agreed upon in settlement). This section 7.2 states the Customer’s sole and exclusive remedy with respect to third party infringement claims.
Subject to the liability for costs and damages pursuant to clause 7.2, AX is only liable to the Customer for damages caused intentionally or grossly negligent and any other liability of AX for damages is expressly excluded to the maximum extent permitted by law.
In the event any Customer provided content that is incorporated into a Work Result is held, or if AX reasonably believes that such content is likely to be held to infringe upon the intellectual property rights of a third party, the Customer will at its option, either (i) modify the content such to avoid the alleged infringement or (ii) obtain a license permitting the Customer’s use of the content to continue unimpeded. Customer will further indemnify and defend AX at the Customer’s expense against any claim of a third party brought against AX in connection with the Customer provided content and will pay all costs and damages incurred by AX in connection therewith including costs and damages finally awarded or agreed upon in settlement; provided that AX gives the Customer prompt written notice of such claim, sole authority to defend or settle the claim and (at Customer’s expense) reasonably required assistance in defending the claim.
Each party shall keep confidential, not disclose to third parties and protect from unauthorized access such information relating to the business sphere of the other party which has (directly or indirectly) been made available to it by the other party and which is not generally available. Disclosure of such information to a party’s employees, subcontractors, consultants and affiliates is permitted on a “need-to-know-basis”, subject to such persons having been made aware of the confidential nature of the information and being bound by appropriate confidentiality obligations. Disclosure obligations imposed by applicable laws and regulations or order of a court or authority remain reserved. Notwithstanding the foregoing, AX shall have the right to disclose the name of the Customer and the general nature of the services provided to the Customer for reference and marketing purposes.
All Customer data will be processed according to the applicable rules on data protection.
Any amendment or supplementation of the Agreement shall require the written form. The written form may be dispensed only in writing.
The Agreement and/or rights and obligations arising thereunder may not be assigned by either party without the written consent of the other party.
If any provision of these General Terms or the Agreement is, to any extent, invalid or unenforceable, the remainder of thereof shall not be affected thereby and the Agreement shall be enforced to the fullest extent permitted by law. The invalid or unenforceable provision shall be replaced by such valid and enforceable provision best achieving the objectives of the parties.
Unless specified otherwise, notices and declarations under or in connection with the Agreement shall be made in text form (e.g. by letter or email) and submitted to the other party to the address specified in the Agreement or such other address notified to the other party in accordance with this clause 12.4. Notices and declarations under or in connection with the Agreement requiring the written form may also be made by and shall be valid upon providing a scan copy of the duly executed original by e-mail (with an obligation by the relevant party to subsequently provide the original).
These General Terms as well as the Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland to the exclusion of the conflicts of law rules and the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising under or in connection with these General Terms and/or the Agreement shall be submitted to the exclusive jurisdiction of the courts in the city of Zurich, Switzerland.