General terms and conditions

1 General

1.1 Scope of application

The following General Terms and Conditions (GTCs) apply to all contractual relationships between Karakun AG and its customers. The current edition of the GTCs shall be attached to every offer.

Expressly written agreements between Karakun AG and the customer deviating from the GTCs, in particular in contracts and associated appendices, shall take precedence over the GTCs

1.2 Definitions

For the purposes of these General Terms and Conditions, “services” include consulting, the development of systems, and the installation, configuration and maintenance of individual or distributed computer systems or their components.

2 Rights and responsibilities of Karakun AG

2.1 Offers

Offers are binding during the period stated in the offer. In the absence of a specified period, a period of 30 days from the date of the offer shall apply.

2.2 Execution of orders

Unless a separate contract is concluded, the contractual basis for the provision of services shall be the written accepted offer (order), on the basis of which Karakun AG shall undertake to provide services. The provision of services begins upon receipt of the order signed by the customer or written confirmation by Karakun AG. The specifications of the order or of the confirmation are applicable unless otherwise stated in the order or the confirmation. Subsidiary agreements must be made in writing. The services are concluded with the delivery of the work specified in the order.

Furthermore, Karakun AG shall undertake to designate a competent contact person to the customer.

2.3 Delivery dates

Agreed delivery dates are subject to possible delays due to circumstances that could not be envisaged by Karakun AG at the time of the order or that were beyond the control of Karakun AG.

2.4 Warranty

In the case of contracts for work and services, the customer shall notify Karakun AG of any defects in writing and in documented form within ten working days of discovery at the latest. Late or unfounded complaints exempt Karakun AG from the warranty obligation

Warranty does not apply to services under service contracts. If the customer asserts a claim for poor performance for which the contractor is responsible within the framework of a service contract, the customer must substantiate this claim.

During a warranty period of six (6) months from acceptance, the customer, at variance from the warranty claims of the Swiss Code of Obligations, has the exclusive right to claim the rectification of defects free of charge within a maximum period of one month, provided the customer gives written notice of such defects within five working days of their discovery.

Other or more extensive warranty claims are expressly excluded. In relation to the rectification of the defect, the customer is obliged to grant Karakun AG access to the necessary premises and to cooperate free of charge within reason.

2.5 Warranty of third party products

Karakun AG assumes no liability for third-party products and defects that are attributable to third-party products; third party guarantees apply in this regard.

2.6 Liability

Claims for cancellation, reduction, rectification and damages against Karakun AG are excluded, unless the defects are due to intentional or grossly negligent action. Claims due to material defects or defects of title expire within 6 months. In all cases of defects, Karakun AG has the right to remedy them firstly within a reasonable period at its own expense. In particular, Karakun AG shall not assume any liability for damages caused by delays in delivery by its suppliers. This applies to all types of contractual relationships between Karakun AG and its customers.

Karakun AG shall only be liable to the customer for damages that are attributable to the present contractual relationship – regardless of the legal reason – only in the event of willful intent and gross negligence. Liability is limited in any case to compensation for direct damage and to a maximum of 40% of the contractually agreed remuneration.

The liability of Karakun AG for pure financial loss, in particular loss of data, as well as for consequential and/or reflex damages such as loss of profit, loss of earnings or production as well as data loss – irrespective of their legal basis – is expressly excluded to the extent permitted by law.

Liability for employees and auxiliary personnel is excluded by Karakun AG in accordance with Art. 101 Para. 2 of the Swiss Code of Obligations.

2.7 Compatibility

Karakun AG shall only guarantee that devices and programs can be combined as required, provided that the functionality of a certain configuration has been guaranteed to the customer in writing.

Karakun AG shall not be liable for incompatibilities resulting from the further development of hardware and operating software.

3 Rights and obligations of the customer

3.1 Duty to cooperate

The customer shall undertake to cooperate in the execution of the contract. In particular, the customer shall undertake to designate a competent contact person to Karakun AG and to provide Karakun AG in suitable form and in good time all the documents, data and information necessary for the fulfillment of the contractual obligations.

3.2 Acceptance

The customer shall inspect and approve the deliverables and products rendered by Karakun AG in a careful and professional manner within a reasonable period of time, at the latest 30 days after delivery, or alternatively report in writing, giving detailed information about any possible defects. In the absence of such a declaration within the aforementioned period, the deliverables and products shall be deemed approved.

3.3 Usage

The application of the delivered services and their use for a specific purpose is the sole responsibility of the customer and is carried out under his own responsibility.

4 Intellectual property and rights of use

Upon full payment of the agreed remuneration, the customer receives a non-transferable, unlimited, non-exclusive, geographically unrestricted right of use within the scope of the purpose of the contract. In all other respects, all rights to services created within the framework of the contract (including documentation, program documents, computer programs, etc.) shall be retained by Karakun AG. Karakun AG remains in any case entitled to further develop, modify, enhance all created services, especially software and software parts, and to use them accordingly for the provision of the same or similar services for third parties.

The product-specific license conditions shall apply to the use of standard software. These are either issued with the programs or are handed over to the customer prior to delivery.

5 Terms of payment

5.1 Payment due date

Invoices issued by Karakun AG shall be due for payment 30 days after the invoice date (expiry date). Any other written agreements are reserved.

In case of noncompliance with the terms of payment, Karakun AG reserves the right to discontinue all customer services. Furthermore, any additional expenses incurred due to late payment will also be charged to the customer.

5.2 Payments for services rendered on a time and materials basis

Karakun AG is entitled to issue partial invoices for services. These correspond to the progress of the work actually carried out and are due for payment immediately.

Work reports shall be sent to the customer in electronic form within ten working days of the end of the month at the latest. The customer shall communicate any reservations within five working days of receipt, otherwise the report shall be deemed approved.

5.3 Payments for services performed at a fixed price

Services rendered by Karakun AG at fixed prices will be invoiced including expenses incurred up to the respective time in accordance with the payment schedule set out in the contract.

5.4 Offsetting of claims

The offsetting of the customer’s claims against those of Karakun AG shall require the written agreement of the parties.

6 Mutual confidentiality

The parties shall mutually undertake to maintain confidentiality regarding the financial, organizational or personal data of the contractual party. This obligation does not apply to data that is generally known or accessible. The customer acknowledges that the structure of computer programs and the source code constitute trade secrets and the customer shall accordingly undertake not to make these accessible to unauthorized third parties. These obligations shall remain in force as long as a legitimate interest exists, even after the termination of the contractual relationship.

7 Partial invalidity / applicable law / legal venue

7.1 Partial invalidity

Supplements or amendments to the contracts between Karakun AG and the customer must be in writing to be valid. Should a provision in the contracts between Karakun AG and the customer be or become invalid, a valid provision shall be deemed to have been agreed upon in its place which most closely resembles the commercial purpose intended by the parties. The same shall apply in the case of a legal loophole.

7.2 Applicable law

Swiss law shall be exclusively applicable to the contracts between Karakun AG and the customer. Any other written agreements in the contracts between Karakun AG and the customer are reserved.

7.3 Legal venue

The place of jurisdiction for all disputes arising from the contractual relationship between Karakun AG and the customer is Basel.

Basel, May 16, 2018

This document is an English translation of a German text. The original German text should be referred to for all legal purposes.
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