BE-terna General Terms and Conditions
of BE-terna Automation AG, Kanzleistrasse 120, 8004 Zurich (hereinafter: “BE-terna”)
1. Scope of Application
BE-ternadevelops products for automated processes and provides business consulting services to its customers.
These General Terms and Conditions (GTC) govern the terms and conditions for BE-terna services, which are described in more detail in framework agreements or individual orders.
Agreements deviating from the GTC are permitted in framework agreements or individual orders, if these are made expressly and with reference to the corresponding GTC provision. Provisions in individual orders take precedence over agreements in framework agreements. These GTC form integral part of all offers and contracts and shall be deemed to have been accepted by the Customer when placing an order (verbally or in writing) with BE-terna.
2. Services and Responsibilities
BE-terna’s services correspond to the framework agreements or individual orders, which can be placed verbally or in writing.
The decision-making power for BE-terna consultancy mandates lies solely with the customer. The customer shall provide all information and other support which may be necessary and useful for the execution of the order. The execution of consulting services is supervised and controlled by the customer.
BE-terna may assign the execution of individual services to third parties (“subcontractors”). There is no direct contractual relationship between the third party and the customer. BE-terna is only liable for due diligence in the selection and instruction of the subcontractor (Art. 399 Para. 2 OR [Swiss Code of Obligations]).
The customer undertakes not to enter any kind of business relationship with persons or companies which BE-terna uses to fulfil its contractual obligations during or up to 24 months after termination of the contractual relationship. In particular, the customer shall not commission these persons and companies with such or similar consulting services that BE-terna offers or employs as employees. In the event of a breach of this agreement, the customer shall owe BE-terna a contractual penalty of CHF 50,000.00 per case as well as corresponding damages. BE-terna is at liberty to additionally demand enforcement of the contact prohibition.
The contracting parties recognize a mutual obligation to inform each other of facts affecting the contractual fulfilment or may lead to inappropriate solutions. The customer shall ensure that BE-terna is provided with all documents necessary for the fulfilment and execution of the consulting assignment in a timely manner and that it is informed of all processes and circumstances that are of significance for the execution of the consulting assignment. This also applies to all documents, procedures and circumstances which only become known during the activity of the consultant.
If the customer wishes to change the agreed services, he must apply to BE-terna in writing.
The client can cancel already booked person days up to 21 days in advance. Late cancellations will be charged to the client.
BE-terna is entitled to suspend its services for the time being if
a. the Customer fails to comply with its contractual obligations (including these GTC).
b. the functionality or safety of the Customer’s equipment or products is at risk.
In the event of cessation of performance, the customer shall have no claim to reimbursement or remission of the agreed remuneration.
In order to ensure the highest quality of expertise of BE-terna employees, the customer accepts a personnel rotation starting from the 6th month and at the latest every 9 months, whereby BE-terna will charge the costs for project handover.
In addition, BE-terna regularly realizes employee training days. The customer grants BE-terna employees one day per month for a maximum of ten days per year of absence from the project for participation in further training and certification courses, whereby the costs for the person day are charged to the customer.
3. Obligation of the Customer to Cooperate
The customer undertakes to cooperate with BE-terna if and insofar as this cooperation is necessary for the provision of services. The customer shall ensure that the defined and necessary duties to cooperate are performed on time, to the extent required and free of charge for BE-terna.
The customer grants employees and subcontractors of BE-terna access to his premises and facilities and, if necessary, obtains the necessary authorizations from third parties.
If necessary, the customer shall provide BE-terna’s employees and subcontractors with a workplace with all necessary communication access free of charge.
The framework contract and the individual contract shall enter into force upon their signing or upon the use of the offered services.
Both contracting parties may terminate the contract in compliance with the deadline specified in the framework contract or individual order. The customer must pay the costs of all consulting services already rendered and the special precautions taken with regard to the fulfilment of the contract.
If one of the contracting parties demands a termination of the project without notice, it shall owe the other contracting party damages in an appropriate amount if the contracting party has not given reasonable cause for the termination of the project.
5. Delivery Dates
Unless expressly agreed otherwise in framework agreements or individual orders, agreed dates shall be regarded as guidelines. No liability can be assumed for their observance.
A contracting party is also released from its deadline obligations in the case of firmly assured deadlines, if the delays have been caused by the other contracting party. Particularly, this includes delays caused by customer’s inability to provide guaranteed personnel resources or information/documents.
6. Licenses and Authorizations
If BE-terna grants licenses and rights of use to a software to the customer, BE-terna declares that it has the necessary authorizations to grant the customer license and rights of use to the software at the time of installation or implementation of the automated process handling.
BE-terna does not guarantee the permanent existence of licenses and rights of use for software supplied by third parties. In the event of the termination of the license and usage rights to third-party software, any liability of BE-terna is excluded and the customer is not entitled to demand from BE-terna a refund of the remuneration already paid or the waiver of the remuneration to be paid by him.
The customer undertakes not to use the automated process handling delivered by BE-terna in a way that could lead to a violation of BE-terna’s license rights.
The customer and the supplier of software may conclude a separate “End User Agreement” which is not the subject of the contractual relationship with BE-terna, so that all rights and claims arising therefrom exist directly against the supplier of the software, whereby provisions of “End User Agreements” cannot bring about any changes to contractual agreements with BE-terna (including these GTC).
Any liability for damage attributable to components supplied by third parties is excluded.
7. Remuneration for BE-terna Consultancy Services
In principle, BE-terna’s services are remunerated monthly on a time spent basis. The fee, based on an 8-hour day, and the reimbursement of expenses are specified in the frame-work contract or individual order.
Unless otherwise agreed, all fees are plus travel costs, expenses and statutory VAT. The recommendations of the ASCO (Association of Management Consultants) regarding expenses apply. These provide for the following guidelines. By train: 1st class; by plane: Business Class; by car: kilometre allowance at normal rates.
The fee is calculated according to the times used for the activity (time fee) or agreed as a fixed price. Fixed price offers are also service offers. Fixed prices are therefore invoiced pro rata over the project period. If a fixed price has been agreed, BE-terna may request a down payment of 30% of the agreed price prior to execution of the ordered services. In addition, BE-terna may invoice further payments on account in proportion to the progress of the work.
All prices listed are exclusive of statutory duties and taxes.
8. Terms of Payment
The invoices issued by BE-terna shall be payable net within 30 days, unless otherwise agreed in the individual order. Upon expiry of the payment period, default automatically occurs (expiration date). The claim of BE-terna shall bear interest of 5% p.a. from the 31st day.
The customer allows BE-terna to use its logo and name as a reference. BE-terna does not provide any information about the content of the cooperation without the prior customer’s consent. Any use within a technical article or as a statement of opinion in a factual context requires the prior approval of the customer.
10. Confidentiality, Industrial Property Rights
The parties’ employees shall use all information received solely for the execution of an order and undertake to keep the content confidential for unlimited time.
In particular, all documents and information which have been and will be produced in the course of the order, as well as all trade or business secrets, trade methods, figures, compilations, internal processes and reviews which come to the knowledge of the contracting parties or their employees on this occasion, shall be treated confidentially.
The disclosure of information by a contracting party remains based on a court order or other official request is permitted. Each Party shall first seek the highest possible level of protection and, if possible, inform the other Party in advance in order to enable the other party to take necessary measures, such as a protection order.
The copyrights to work products created by BE-terna and its employees and/or subcontractors shall remain with BE-terna. They may be used by the customer during and after termination of the contractual relationship exclusively for purposes covered by the contract.
The results of the consultation, particularly BE-terna presentation documents, are intended exclusively for internal use and may not be passed on or published to third parties, such as banks, auditors, etc., without the express consent of BE-terna. BE-terna thus wishes to exclude the possibility that it may be used by third parties for whom the results are not in-tended. BE-terna therefore assumes that the customer indemnifies it and its employees from claims by any third parties.
11. Duty of Care and Liability
BE-terna is committed to the careful selection and training as well as professional behaviour of its consultants.
BE-terna shall only be liable for grossly negligent and intentionally caused damage, regard-less of the liability basis on which claims have arisen. This also applies mutatis mutandis to damage caused by third parties involved by BE-terna. The customer must provide proof that the damage is attributable to BE-terna’s fault. The liability of BE-terna, insofar as it is not excluded, is limited to the simple value of the fee for all claims in connection with services rendered in connection with this, but to a maximum of CHF 200,000.00 for all claims. The customer can only assert claims for damages in the minimum amount of CHF 5,000.00 per event.
BE-terna does not assume any warranty for a specific result of its services. Particularly, BE-terna shall not be liable for losses, lost profits, missed savings, damages from claims of third parties or for all other consequential damages. Nor shall BE-terna be liable if, for reasons for which it is not responsible, it is prevented from fulfilling its obligations under this contract in a timely or proper manner. Where legally binding dates have been agreed in deviation from Section 5 above, these shall be extended according to the duration of the effect of the circumstances for which BE-terna is not responsible.
In the event of alleged liability of BE-terna, the customer shall report the damage immediately in writing, otherwise a waiver of compensation will be accepted. In addition, the customer is obliged to take all reasonable measures to keep damage or its effects as low as possible.
12. Written Form Reservation
All amendments and supplements must be made exclusively in writing and with a reference to the GTC, framework agreements or individual orders; they must be signed by both contracting parties in a legally binding manner.
Should parts of these GTC, the framework agreement or the individual orders be null and void or become legally ineffective, the remainder provisions shall continue to apply. The parties shall then interpret and construe the contract in such a way that the intended purpose of the void or legally ineffective provisions is achieved.
14. Assignment and Transfer
The customer may only assign or transfer framework agreements and individual orders or individual rights and obligations to third parties with the prior written consent of BE-terna.
15. Settlement of Disputes
In the event of disagreement, the parties shall endeavour to try to reach an amicable settlement before bringing the matter before the court and to give at least the other party sufficient opportunity to submit a written statement and to remedy the alleged breach of contract.
16. Applicable Law and Jurisdiction
These terms and conditions as well as the framework agreements or individual orders are subject to Swiss substantive law to the exclusion of conflict of law’s provisions and the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
The court of jurisdiction for all disputes arising from these contractual conditions, framework agreements and individual orders shall be Zurich (city).