NB: in case of discrepancies between this version and the German version, the German version shall prevail
The General Terms and Conditions of Ontrex AG are structured as follows:
A. General provisions
B. Special conditions for Managed Services
C. Special conditions for training
D. Special conditions for licences and maintenance and subscription
E. Special conditions for the use of the website
F. Final provisions
A. General provisions
1. APPLICATION AND HIERARCHY
1.1. These General Terms and Conditions ("GTC") of Ontrex AG ("Ontrex") shall apply to all contractual relationships with customers in connection with deliveries and services and shall be deemed an integral part of the contract. The GTC shall also apply to future business relationships without Ontrex having to refer to their validity separately for each individual contract with this customer.
1.2. The GTC are designed as a framework agreement. Any individual agreements shall take precedence over these GTC.
1.3. Insofar as more detailed provisions exist in the special conditions of these GTC, these take precedence over the general provisions.
1.4. Conflicting or deviating terms and conditions of the customer shall not be recognized unless they have been expressly agreed to in writing in advance.
1.5. Ontrex reserves the right to adapt these GTC to changing requirements. The currently valid version can be found on the Ontrex website.
2. RANGE OF SERVICES
2.1. Ontrex provides various consulting and other services within the scope of the selection, introduction, installation, training, operation, use and customization of third-party software on the basis of a separate order by the customer. Furthermore, software products from third-party providers or Ontrex and the associated maintenance or subscription are offered to the customer within the framework of purchase contracts. In addition, Ontrex also provides software-independent services. Furthermore, it operates websites and provides the possibility to make downloads.
2.2. The concrete scope of services of an individual order results from the offer or order confirmation of Ontrex. Subsequent deviations from the offer or order confirmation must be agreed in writing, insofar as they are not purely technical deviations that have no effect on the scope of services or the remuneration.
2.3. Unless otherwise agreed, the performance of Consulting Services and Managed Services shall be subject to the terms of the Order.
2.4. It is the responsibility of the customer to regularly check compliance with the defined project objectives. The type and manner of project documentation shall be determined jointly by Ontrex and the customer.
2.5. The employees required for the performance of the services shall be provided by Ontrex and selected according to the requirements of the owed performance of the services with the necessary qualification. At the request of the customer, a project manager will be designated by the parties as the exclusive contact person of the customer if the scope of the services to be provided is appropriate. Ontrex reserves the right to replace the persons entrusted with the provision of services at any time by other persons with equivalent qualifications. Ontrex is entitled to involve third parties or third-party companies for the provision of services.
2.6. The instruction and supervision of its employees, the scheduling of the work as well as the manner in which the services are provided are the exclusive responsibility of Ontrex, without prejudice to the right of the customer to monitor the services commissioned by it for execution in accordance with the contract.
2.7. The time or costs stated in the offer or order confirmation shall be deemed to be an estimate. Overruns may occur during the performance of the service and will be communicated to the customer as soon as possible, insofar as it is foreseeable that they will amount to more than 10% of the quoted or commissioned expenditure.
2.8. The customer must check the services provided immediately after their completion for compliance with the contractual assurances. Ontrex must be notified immediately of any defects. Ontrex may demand confirmation from the customer of the proper provision of services, also for sub-projects or completed service units. If defects are not reported within three weeks after notification of completion, acceptance shall be deemed to have taken place.
2.9. Ontrex shall provide its services during normal office hours (08:00 - 12:00 / 13:00 - 17:00) outside public holidays at the registered office of Ontrex from Monday to Friday. If the customer orders the provision of services outside normal office hours, a surcharge of 25% shall be applied to the agreed rates for evening (17:00 - 22:00), night (22:00 - 08:00) and Saturday work and a surcharge of 50% for Sunday and public holiday work. Travelling time shall be considered as working time. On-call duty is to be agreed separately.
3.1. The remuneration to Ontrex shall be based on the individual agreement. Insofar as no other remuneration has been agreed in the individual agreement, the services of Ontrex are to be remunerated according to time expenditure, i.e. according to hourly rates or daily rates plus expenses and value added tax. The amount of the latter shall be determined according to the corresponding offer or the price list of Ontrex valid at the time of the placing of the order. The hourly/daily rates may vary depending on the qualification of the employee.
3.2. If a fixed amount or cost ceiling has been agreed as remuneration, all work that is not explicitly shown as included in the individual agreement shall be deemed to be separate services that are to be remunerated additionally.
3.3. Ontrex shall have the right to adjust the agreed remuneration for the future to the end of a contractual year in each case in line with inflation. Ontrex shall assert this right by notifying the customer no later than 2 months before a possible adjustment date. The national consumer price index, basis index 2010 = 100 points, shall be decisive. A price adjustment is made on the basis of the calculation bases of the Federal Statistical Office and its inflation calculator (http://www.portalstat.admin.ch/lik_rechner/d/lik_rechner.htm). The month prior to the conclusion of the respective individual contract is decisive as the first calculation basis for the inflation. In addition, Ontrex may adjust the prices if individual items of the index (in particular energy, raw material prices or wage costs) increase and this has a direct influence on the costs of the service provision.
3.4. Unless otherwise agreed in the individual agreements, business or project-related expenses are not included in the costs and will be invoiced separately. Journeys to or from the customer or the place where the service is provided shall be charged at CHF 0.70/km. Larger expenses (e.g. air travel) must be approved by the customer in advance in writing (email sufficient). Ontrex reserves the right to apply a flat rate of 3% of the invoice total instead of individual expenses.
3.5. Invoicing is usually done on a monthly basis. In the case of projects of shorter duration or smaller scope, invoicing will take place after completion of the order, i.e. after completion of the work by Ontrex. Ontrex reserves the right to issue advance payment invoices and may make the commencement of the work dependent on the payment of the advance payment.
3.6. The invoice amount is due within thirty (30) days after invoicing without deductions. In the event of untimely payment of invoices due, Ontrex may suspend the provision of further services.
3.7. Licenses, maintenance, subscriptions and downloads must be paid for before the product or service is used for the first time.
3.8. Offsetting against counterclaims of the customer is excluded.
3.9. In the event of bankruptcy of the customer, any orders shall not expire and any advance payments made shall not be reclaimable.
4. PERFORMANCE QUALITY, POOR PERFORMANCE, DEADLINES, CLAIMS FOR DEFECTS
4.1. With regard to the services provided, Ontrex shall be liable for the timeliness and proper provision of this service, but not for an economic or other success of the service sought by the customer. The services shall be provided by Ontrex with due care and in accordance with the standard applicable in the industry.
4.2. Deadlines stated in quotations or order confirmations are approximate unless they have been explicitly agreed as fixed deadlines. Even in the case of fixed dates, any delays caused by the customer shall be borne by the customer. In the event of delivery bottlenecks and delivery delays for which Ontrex is not responsible, agreed deadlines will be extended accordingly. Ontrex shall inform the customer about corresponding events.
4.3. Ontrex guarantees the customer that it will provide the services to the best of its knowledge and the state of the art. If the provision of services by Ontrex does not correspond to the services listed in the offer, the customer shall only be entitled to a right of rectification, for which at least 30 days must be granted. The rectification of defects shall commence within 5 days of the detailed notification by the customer of the defective performance. If a rectification of defects does not lead to the offered result even after two attempts, the customer is entitled to a right of reduction in the second and final instance. Should Ontrex, in its own opinion, not be in a position to provide the corresponding service in the quality offered, it shall reimburse the customer for the equivalent value of the service not provided. Services provided to date shall be adequately compensated.
4.4. As far as legally permissible, claims due to defects or other breaches of duty by Ontrex AG expire after one year.
5.1. The liability of Ontrex is, as far as legally permissible, limited to intent and gross negligence. Liability for auxiliary persons is excluded.
5.2. In the event of a slightly negligent breach, Ontrex shall only be liable insofar as an obligation is breached, compliance with which is of particular importance for the achievement of the purpose of the contract. In the event of a breach of such an obligation, Ontrex shall only be liable for such damages that must typically be expected in the context of the provision of the service.
5.3. Liability for third-party damages and consequential damages (loss of profit, business interruption, loss of earnings, etc.) is excluded to the extent permitted by law.
5.4. Ontrex shall not be liable for the loss of data unless the customer proves that the loss of data occurred despite proper data backup by the customer. In any case, the scope of liability in the event of loss of data is limited to the typical restoration expenditure that would have occurred if back-up copies had been made regularly.
5.5. The liability of Ontrex under a particular contract is limited to the amount of invoices paid under that contract by the customer in the twelve months preceding the event of loss.
6. DUTY OF COOPERATION OF THE CUSTOMER
6.1. If required, the customer shall provide Ontrex with the necessary premises, the necessary work equipment, (remote) access to the relevant IT systems as well as the necessary information and documents for the performance of the services.
6.2. If the involvement of employees of the customer or third parties is necessary in the provision of services, the customer shall be responsible for the appropriate qualification of the persons to be involved.
6.3. If the customer violates the obligation to cooperate, Ontrex may suspend or terminate the further provision of services. Services already rendered shall be appropriately remunerated.
6.4. If the customer does not wish Ontrex to assign a project manager, the customer alone is responsible for project coordination and execution.
7.1. The customer and Ontrex are obliged to keep secret information about the respective other party, which they obtain in the context of the performance of the contract, and to take all reasonable precautions to protect such information and documents requiring secrecy from unauthorized forwarding, reproduction or use. If Ontrex uses third parties for the performance of services, it must demand a corresponding declaration of confidentiality from these third parties.
7.2. Confidential information and documents are not information that is generally known to third parties, that has been lawfully obtained from third parties, that has been made generally available to third parties without breach of confidentiality agreements, that was demonstrably already known or independently developed by one party prior to receipt of the other party's confidential documents.
8.1. Ontrex shall be entitled to all intellectual property rights (e.g. copyrights, patents, utility models) and other rights arising in connection with the provision of services. The customer shall be granted worldwide, non-exclusive, non-transferable rights of use for their use.
8.2. If customer-specific developments (e.g. dashboards) are made, the customer receives an unlimited, free and transferable right to use these developments.
8.3. Existing intellectual property rights shall remain with the respective rights holder.
B. Special conditions for managed services
9. SCOPE OF APPLICATION
9.1. These special terms and conditions for Managed Services shall apply in addition to the GTC to all contractual relationships in connection with the services offered by Ontrex as a Managed Service, unless otherwise agreed in writing in an individual agreement.
10. RANGE OF SERVICES
10.1. All services of Ontrex which are not explicitly mentioned in the offer or the service description do not form part of the Managed Services and are to be paid for separately. This includes in particular, but not exclusively:
- Costs of hardware, spare parts, equipment and shipping costs;
- Cost of software, licensing, update or upgrade fees;
- Costs from third-party providers, manufacturers or incident fees;
- Costs associated with establishing the minimum standard of the customer's environment to deliver the managed services;
- Errors related to force majeure, building alterations, power cuts and the like;
- Services and repairs due to adaptations of the system environment;
- Travel expenses;
- Maintenance work covered by specific maintenance contracts with the manufacturer;
- Packaging work;
- Software adaptations;
- Training of any kind.
10.2. It is the common understanding of the parties that all work that is not explicitly listed in the range of services of the offer is to be considered as projects with separate invoicing. For such projects, the prices of the consulting services shall apply.
11. DURATION AND TERMINATION
11.1. The contract for Managed Services shall become effective upon signature of the corresponding contract or countersignature of the offer by the customer and shall remain in force for the minimum term of one (1) year from signature, unless the individual agreement provides for a longer term.
11.2. There shall be an annual review and, if necessary, a mutually agreed adjustment of the work to be done and the conditions.
11.3. The contract for Managed Services shall be automatically renewed for a further year in each case if it is not terminated by one party with a notice period of three months before the expiry of the contract.
11.4. The contract for Managed Services may be terminated prematurely by the customer with a notice period of three months if:
- Ontrex fails to perform essential tasks under the contract and fails to perform them after a reasonable grace period of at least 30 days. Individual tasks to be completed within the Managed Service are not considered "essential tasks" unless they are central to the maintenance of the operation;
- Ontrex does not fulfil essential contractual conditions and does not fulfil them even after setting a reasonable grace period of at least 30 days;
- Ontrex ceases to provide or terminates the provision of the services specified in the individual agreement, except where such Services are transferred to a competent alternative service provider;
11.5. The customer and Ontrex agree that the Managed Service is a continuing obligation that requires a higher initial outlay, especially in the start-up phase.
11.6. Ontrex may suspend performance under the Managed Services agreement or terminate the contract if the customer fails to meet its payment obligations on time.
11.7. Ontrex undertakes to assist the customer, against compensation, in the transfer of the services to another service provider or internal offices at the customer after the termination of the Managed Services Agreement.
12. PRICES, PAYMENT
12.1. The costs of the Managed Service shall be invoiced annually before the beginning of the contractual year and shall be due and payable on the first day of the contractual year. A reclaim of advance payments is excluded unless one of the reasons pursuant to para. 14.4 exists.
13. RESPONSIBILITIES OF THE CUSTOMER
13.1. The customer must ensure that the following minimum requirements are met:
- Provide contact details of (at least) one contact person at the customer with sufficient expertise and decision-making authority;
- Prompt reaction/action by the customer in the case of work to be initiated by the customer, administrator activities, patching, etc.;
- Remote access for Ontrex staff with sufficient bandwidth;
- Ensuring uninterrupted and trouble-free provision/delivery of the Managed Services;
- The operating systems are on a release that continues to be maintained and the latest service packs are installed;
- The software subject to the Managed Services shall be up to date or at a level agreed by the parties;
- The customer's system environment has a licensed and supported backup solution with notification of errors;
- The customer's firewall and anti-virus solutions are up-to-date.
C. Special conditions for training
14. SCOPE OF APPLICATION
14.1. These special terms and conditions for training courses shall apply to all contractual relationships with customers in connection with the training courses conducted or arranged by Ontrex and shall be deemed an integral part of the contract, unless otherwise agreed in writing in an individual agreement.
15. TYPES OF TRAINING
15.1. Training is offered by Ontrex as public training and as customized training.
15.2. Both public training and customized training can be conducted at Ontrex premises or at third-party locations. Training content, dates and location can be found on the Ontrex website.
16. PUBLIC TRAININGS
16.1. Registration for the public trainings is done via the Ontrex website. Registrations received by Ontrex will be considered in the order in which they are received.
16.2. Participants will receive a course confirmation by email at least one week before the course starts. A minimum number of participants is required for the courses to take place. If the minimum number of participants is not reached or for other reasons for which Ontrex is not responsible, Ontrex reserves the right to cancel or postpone courses. Any course fees already paid will be refunded. Further claims by the course participant, in particular claims for damages in the event of a significant change or cancellation of a course, are excluded.
16.3. The prices for public training courses are per participant, including training documents and, if applicable, lunch and break catering. Invoices are issued immediately after course confirmation. Payment is due net before the start of the course. Registration only becomes definitive upon receipt of payment.
17. CUSTOMISED TRAINING
17.1. Training contents, dates and training location of customer site training courses are agreed in a training agreement between the customer and Ontrex.
17.2. Insofar as training courses are held at the customer's premises, the customer shall provide suitable premises and work equipment.
17.3. The prices for customer-specific training courses are the content of the training agreement between the customer and Ontrex. Customer-specific trainings are to be paid before the course starts.
18. WITHDRAWAL OR REBOOKING
18.1. Registrations made can be transferred to other suitably qualified persons at any time before the start of the course.
18.2. Deregistration is subject to the following costs:
Date of deregistration Costs excl. VAT
> 1 month before course start No costs
1 month to 10 working days before course start CHF 100.00
< 10 working days before course start 50% of the course fee
< 5 working days before course start 100% of the course fee
18.3. In the event of non-attendance, only partial attendance or withdrawal before the end of the course, there is no right to a refund of course fees already paid. In justified cases (medically certified, prolonged illness or accident), a request for postponement of the course can be made, with the course fee being credited.
19. COPYRIGHT/ COURSE DOCUMENTS
19.1. Documents handed over by Ontrex in the context of training courses in paper or electronic form or information transmitted in electronic form are subject to the copyright of Ontrex and are intended for the personal use of the training participant. Without the express consent of Ontrex, the participant is not entitled to reproduce the documents and information in any form or to use them in other events.
19.2. Course participants are expressly forbidden to make the course materials handed out available to third parties.
19.3. If course materials are incorrect or deficient, Ontrex will promptly improve them. All course documents are continuously updated, however, there is no claim to rectification or up-to-dateness at all times. Likewise, there is no claim under the warranty of quality under the law of sale.
20. COURSE EXCLUSION
20.1. Ontrex reserves the right to exclude course participants from the course for important reasons. Important reasons are in particular:
- Proven false information during registration
- Recognizable misuse of learned expertise
- Arbitrary damage to course material, working instruments, etc.
- Impairment of course discipline
- Other breaches of these GTC.
20.2. Ontrex reserves the right to notify the course participant's employer of the course exclusion.
D. Special conditions for licenses and maintenance and subscription
21. SCOPE OF APPLICATION
21.1. These special terms and conditions for licenses, maintenance and subscription apply to all contractual relationships with customers in connection with the sale of licenses, maintenance and subscription by Ontrex.
22.1. With regard to licensing, maintenance and subscription, the relevant end-user license agreements of the manufacturers or specific SLAs of Ontrex apply.
22.2. The customer acknowledges that Ontrex has not developed or improved the relevant Software and therefore the customer shall address any claims arising from the use of the software directly to the manufacturer.
E. Special conditions for the use of the website
23.1. These specific terms and conditions for use of the Website apply to access to and use of the websites operated by Ontrex and the products and services made available through the websites (collectively, the "Services") by visitors to the websites ("Users").
23.2. By using the Services, the User agrees to be bound by these terms. He/she acknowledges that these terms and conditions may be amended as necessary and will visit the website regularly to inform himself/herself of any amendments. If the user does not agree with one or more of these terms, he/she should not use the website.
23.3. Subject to the following provisions, the User may download the content of the websites or create print screens for personal use.
23.4. Access to the websites is provided on a temporary basis only and Ontrex reserves the right to adjust or discontinue the Services entirely without notice. Ontrex shall not be liable for the unavailability of the websites and may restrict access to the websites in whole or in part.
23.5. The content of the website should not be construed as advice or consultation. Although Ontrex endeavors to ensure that the information published on the websites is accurate, Ontrex cannot guarantee that it is complete or error-free.
23.6. The websites may contain links to other websites that are not operated by Ontrex. Ontrex has no control over such websites and cannot accept any responsibility for such websites or their content. The use of such websites is governed by the rules applicable to them.
24. NON-PERMITTED USE
24.1. The User undertakes not to use the websites for illegal purposes. In particular, the User is prohibited from using the websites to commit crimes or to incite others to commit crimes, to send or distribute viruses, Trojans, worms, logic bombs, spam or other malicious, obscene or otherwise disturbing data or files. Furthermore, the User is not permitted to hack into the services, destroy data, manipulate them, influence the speed of data transmission or the functionality of the websites or infringe the intellectual property rights of third parties. Ontrex considers a violation of the above provisions to be a criminal offence and may report the offending user to the relevant criminal authorities.
24.2. Ontrex is not responsible for any loss or damage caused by denial-of-service attacks, viruses or other technologically harmful material that may infect your computer equipment, software, data or other property through your use of the websites, your downloading of data or content, or your use of any links.
25. COPYRIGHTS, SOFTWARE AND CONTENT
25.1. Copyrights to the software made available on the websites or to the content remain the property of Ontrex or the manufacturers respectively.
25.2. The User is not permitted to publish, sell, rent, license, duplicate, copy, commercially or non-commercially exploit, edit or modify or redistribute the software made available on the websites or the content of the websites without appropriate authorization.
F. Final provisions
26. FORCE MAJEURE
26.1. The term "Force Majeure" in these GTC means:
a) any event that is beyond the control of Ontrex;
b) Hacker attacks, virus attacks or attacks by other malicious software or corresponding infections;
c) Problems with the internet or cloud services, parts thereof or service providers in this context; and/or
d) Power outages, strikes, legal regulations, epidemics and pandemics, fire, water damage, disasters, riots, terrorist attacks or wars.
26.2. To the extent that force majeure causes a failure or delay of Ontrex's obligations under a contract, such obligations shall be deemed to be suspended for the duration of the force majeure.
27. DATA PROTECTION
27.2. The customer agrees that Ontrex may also use the data at affiliated companies.
27.3. The customer remains the owner of their data at all times. They must ensure the quality of their data and notify Ontrex of any changes.
28.1. The customer or user undertakes to indemnify Ontrex without limitation in the event that the customer or user violates the provisions contained in the GTC and thereby causes damage to Ontrex or third parties.
29.1. Without the written consent of Ontrex, the customer is prohibited from employing Ontrex employees within two years of the termination of the contractual relationship.
29.2. Any violation of the non-solicitation obliges the customer to pay a contractual penalty in the amount of six months' salary of the enticed employee as well as compensation for any further damage in excess thereof.
30.1. The customer may not assign, pledge or otherwise transfer any claims or rights against Ontrex without its prior written consent.
30.2. If Ontrex waives any rights under these GTC, the waiver is to be understood as a one-time waiver and does not apply to future business relationships unless this is recorded in writing.
30.3. Should any provisions of these GTC be invalid, ineffective, unenforceable or incomplete in whole or in part, such provisions shall be replaced or a gap shall be filled by a provision which, from a reasonable and objective point of view, leads to a reasonable balance of interests for both parties.
30.4. The place of performance is the registered office of Ontrex, in the event of deviating individual agreements, the registered office of the customer or an agreed third-party location.
31. APPLICABLE LAW AND PLACE OF JURISDICTION
Swiss law shall apply to the exclusion of the Vienna Sales Convention and conflict-of-law rules.
The exclusive place of jurisdiction for disputes in connection with the provision of services by Ontrex is Zurich 1. Ontrex reserves the right to bring enforcement claims before any other competent court. The ordinary courts shall have jurisdiction.