1.1. Scope of validity
These General Terms and Conditions (GTC) are applicable if they are announced in and enclosed with any kind of other formal document provided by Qnamic. These GTC also apply to all subsequent legal transactions between Qnamic and the customer, even if they are no longer specifically agreed. All (other) terms and conditions from the customer, especially general terms and conditions, delivery or procurement conditions, do not become part of the aforementioned documents of Qnamic, even if Qnamic has not explicitly excluded such customer conditions.
Proposals received from Qnamic are non-binding and only valid during the acceptance period stated therein.
1.3. Written form
All contracts, agreements and legally relevant declarations, including changes made to these GTC or to main documents require a written confirmation expressing mutual consent signed by both parties in order to be valid.
2. General rights related to the software
The customer acknowledges that the software and documentation are protected, among other ways, by European, U.S. national and federal copyright laws and international treaties. The software’s organization, structure, sequence, logic and source code are valuable trade secrets of Qnamic. Except for those rights expressly granted by these GTC to the customer, Qnamic retain and shall own all rights, title and interests in and to all the software and documentation and any enhancements to the software and documentation, and the customer shall have no right, title or interest in or to any of the software and documentation, including, without limitation, all Intellectual Property Rights comprising or related to the software and documentation. The customer is only entitled to use the software according to the regulations provided by Qnamic and these GTC.
3. Rights of use of the customer related to the software
3.1. Conditions of use
The customer is obliged to use the software provided by Qnamic only within the scope and for the purposes agreed in the documents provided by Qnamic. Any use beyond these purposes and these GTC is only permitted with the prior written consent of Qnamic.
The customer may only create a backup copy of the software for backup and archiving purposes (as long as this is technically possible, e.g. not for cloud operational environments).
3.3. Modifications and alterations of the software
Any modification, alteration or processing of the software (if at all technically possible) in particular by modification, change, extension, translation or by integration or connection with other software programs, is only permitted with the prior written consent of Qnamic.
A decompilation of the software (if at all technically possible) is only permitted to the extent and for the purposes which the applicable mandatory law describes as permissible. Prior to such decompilation, the customer must request Qnamic in writing to provide the required information for the given purpose. If the customer consults or assigns third parties for this purpose, the customer must first oblige the third party in writing to comply with the conditions applicable to the customer regarding the use of the software.
3.5. Protective note
Protective notes on the software may not be removed and must, notwithstanding the above provisions, also be applied to any copies and edited versions.
3.6. Duration and details of right of use
The duration of the right of use begins (in absence of deviating provisions in the documents provided by Qnamic) with the delivery to the customer or with the provision of the software via Internet (e.g. in cloud operation) by Qnamic. The above rules also apply to software which the customer receives later from Qnamic within the scope of warranty or maintenance. As soon as the customer uses such later delivered software, the right of use of earlier versions of the software, which is replaced by later delivered software or software versions, ceases automatically.
Upon termination of the duration of the right of use as specified in the documents provided by Qnamic or in the event of non-compliance with the specifications of the respective licence model, the customer must cease using and delete the software (and any copies thereof), subject to the customer’s data, that is the subject of any statutory storage obligations.
4. Provision of software by Qnamic
4.1. Delivery of software
The software shall be delivered (unless otherwise stipulated) in machine-readable form or made available to the customer for use elsewhere (e.g. via Internet or cloud operational environment), together with the associated standard documentation intended for the customer. Unless explicitly agreed otherwise, the software shall be delivered, provided or made available in the version current at the time of delivery. In cloud operation environment, Qnamic will always make the current version of the software available.
The delivery of the software shall be deemed to have taken place upon physical transfer upon dispatch by Qnamic. If the delivery is made using communication technology systems or in cloud operational environment, the delivery is deemed to have taken place as soon as the software has arrived on the customer’s system or is used by the customer via the Internet or cloud operation environment.
The support of the customer during the installation, introduction and commissioning of the software is not part of Qnamic’s software delivery activities. Corresponding services are only to be provided by Qnamic if they have been agreed upon with the customer in writing in the main document. In this case Qnamic is also not liable for success, unless this has been explicitly agreed upon in writing.
4.2. Software quality / testing
After delivery, the customer must immediately check the functional and non-functional behaviour of the software for any defects. An acceptance test shall only take place if this has been agreed in writing.
If explicitly provided for in the main document, the software will be made available by way of hosting (either by Qnamic or Qnamic´s subcontractors). The availability and service levels listed in the main document shall then apply to operation in the cloud operational environment and, if applicable, hosting.
Qnamic may provide further services in connection with the software on the basis of separate written agreements (individual contracts). The following regulations of this clause (§ 5) only apply if these services are explicitly offered by Qnamic.
5.1. Consultancy / Support / Training
Qnamic advises and supports the customer in accordance with the documents provided by customer in connection with the installation, introduction, customer-specific parameter-sation, training for and commissioning of the software.
5.2. Development Services
Qnamic develops customer-specific software adaptations and extensions as well as interfaces on the basis of the specifications (detail specifications) developed by the customer and/or, if necessary, developed with the support of Qnamic. Qnamic´s support is generally not mandatory if not stated otherwise in the documents provided by Qnamic.
In the absence of deviating regulations, the customer has the same right to use these development results as the software itself (see clause § 3). The rights to the development results are owned by Qnamic and Qnamic is entitled to incorporate these development results in the standard of the software (and to make the development results and the modified standard of the software available to other Qnamic customers). Regarding the delivery of development results, Clause § 4 shall apply accordingly.
5.3. Responsibility by Qnamic
Qnamic performs and provides the services described above in a professional manner and with due care and attention. Qnamic’s liability is otherwise governed by clause 13.
6. Software maintenance
Qnamic provides maintenance and care services for the software, if commissioned, on the basis of separate written contracts in accordance with the documents provided by Qnamic. Qnamic provides maintenance services for the results of development services, if and to the extent this has been agreed in writing with the customer and for a separate fee. In the case of delivery via cloud operational environment, the maintenance and care service of the software is usually included in the fee agreed upon.
7. Cooperation of the customer
The customer is responsible for the provision of the cooperation services agreed in the main document as well as for the operational environment of the software (e.g. hardware, operating systems, databases, communication platforms). In connection with this and when using the software, the customer must comply with all specifications and regulations, especially those of Qnamic.
The customer shall support Qnamic free of charge and to the necessary extent in fulfilling the agreements of the main document, for example by providing employees in the necessary number and with the necessary qualifications (e. g. skills, experience levels), working space, tools and equipment, hardware, software and telecommunication infrastructure, including remote access to the software, as well as the documents, data and information required by Qnamic, and by granting Qnamic the necessary access and authorization.
The customer must carefully test the software before commencing productive use. This also applies to software delivered to the customer under warranty and/or as part of maintenance services.
The customer takes the necessary measures for data protection as well as the appropriate precautions against the effects of possible defects, disturbances or malfunctions of the software.
The customer bears the consequences of missing, insufficient or untimely cooperation, in particular the additional costs incurred by Qnamic.
8. Contact parties – single point of contact
Each contract party designates a representative who, in addition to the management, is the contact person of the other party and who is responsible for proper and good cooperation with the other party. The contact persons are responsible for receiving communications from the other party and taking the necessary decisions or preparing the decision making in time and in accordance with the respective party’s internal rules of competence.
Deadlines are only binding for Qnamic if this has been agreed upon in writing with the customer in the main document (as so-called “fixed deadlines”). This also applies if these dates are called milestones or similar in the main document.
In case of non-compliance with a binding deadline for reasons for which Qnamic is responsible, Qnamic will only be in delay if the customer sends a written reminder.
In the event of delay, the customer is entitled and obliged to set Qnamic a period of grace in writing. The grace period must be reasonable and at least 10 working days. The grace period must be sufficient to provide and deliver a solution, suggest a solution or to provide a reasonable (temporary or permanent) work-around.
Only after the useless expiration of at least two grace periods, the customer is entitled to terminate the main document and, if applicable, demand a reduction of payments. In the absence of an agreement in the main document, a withdrawal from it is generally excluded.
Qnamic’s liability is otherwise governed by clause 13. If Qnamic is prevented from rendering its services for reasons for which the customer or third parties are responsible, in particular due to lack of or insufficient cooperation in accordance with clause 7 of these GTC or due to force majeure (e.g. natural disasters, mobilisation, official measures, failure or impairment of electricity, telecommunications or transport networks, operational disruptions, labour disputes, etc.), the subsequent deadlines will automatically be postponed by the duration of the hindrance as well as a reasonable start-up period. In this case, there will be no delay on the part of Qnamic.
10. Pricing and Invoicing
Unless otherwise agreed in the respective main document, the prices and fee rates for Qnamic’s licences and services are based on the valid and current price list of Qnamic.
The invoice for the remuneration of the software shall be issued on delivery as defined in clause 4.2, unless otherwise stipulated. In case of partial delivery Qnamic can issue partial invoices.
Maintenance, support or hosting fees will be invoiced in advance at the beginning of each calendar quarter unless otherwise stipulated in the main document.
Invoices for services are issued monthly according to the effective expenditure; Qnamic can demand reasonable advance payments. The same applies for agreed compensation of expenses and other costs. Cost and budget estimates and other amounts given (e. g. additional expenses) by Qnamic are only binding if they have been designated as such in writing. Invoices from Qnamic are payable – _free of charge, e. g. withholding transfer or banking fees or applying additional costs – within 30 days of the invoice date to the bank account specified by Qnamic, after which delay of the customer occurs without further reminder.
10.3. Costs and expenses
All costs and expenses of Qnamic as well as any third party costs (e.g. hosting) incurred during the provision of the service, as well as all ancillary costs, e.g. packaging, transport, travel and accommodation, insurance, telecommunication costs, etc., will be invoiced to the customer against proof.
10.4. Taxes and comparable charges
Taxes and other charges – e.g. VAT, trade taxes etc. – are not included in Qnamic’s prices and fee rates and are shown separately in the invoices and invoiced additionally. In principle, all taxes and other charges (including customs duties, duties, excise duties, gross receipts, turnover, usage and value added taxes) other than income or corporation tax (or similar taxes) are borne by the customer.
If a tax or other charge other than income or corporation tax (or similar taxes) is withheld or deducted from a payment made by the customer to Qnamic, the customer must increase the payment by an amount which ensures that Qnamic will receive a net amount equal to the payment originally required and stated in the invoice.
If the customer is legally obliged to withhold the tax on income or profit tax or a similar tax (hereinafter “withholding tax”) from a gross payment to Qnamic, the customer is entitled to withhold or deduct this tax from the gross amount payable if and to the extent that Qnamic can offset the withholding tax liabilities against its income and profit tax liabilities in accordance with the law at its registered office and without any disadvantage occurring in the net amount, as stated in the invoice, for Qnamic.
However, the customer will use its best endeavours to reduce such withholding to the lowest possible rate and amount in compliance with all applicable laws and double taxation treaties. Qnamic will cooperate with the customer to the extent necessary to apply for such a reduction. Otherwise, if the former is proven not to be feasible at all, the customer will be entitled to withhold taxes at the customary rates as determined by applicable law. In the event of withholding tax, the customer will provide Qnamic with a receipt from the relevant tax authority to which the withholding tax has been paid. In the event that Qnamic is not entitled under the laws at its legal registration (domicile) to set off the withheld income and profit tax liability, Qnamic and the customer shall agree in writing whether the customer shall be entitled to withhold any withholding tax at Qnamic’s expense from the contractually agreed payments. The customer will be notified by Qnamic of the fact that such offsetting is not possible (or is not possible in a particular year).
10.5. Settlement of claims
The customer is not entitled to set off claims of Qnamic against his own counterclaims, unless these have been legally established. Furthermore, the customer cannot deduct any claim against Qnamic from a payment related to an invoice not directly related to the cause of that claim.
11. Warranty for the software and development service results
11.1. Contents of the warranty
Qnamic warrants that the software has been created with the care customary in the industry and in compliance with recognised programming principles and that it corresponds to the description in the associated documentation as well as fulfils any functions agreed in the main document.
Qnamic does not warrant that the software is error-free outside normal tolerance criteria and can be used for any purpose of the customer as well as under any operating conditions and that the software can be operated without interruption.
The availability and service levels listed in the main document shall apply to operation in the cloud operational environment and, if applicable, hosting of the software.
A strict liability of Qnamic for the software is also excluded in the case of cloud operation. Qnamic’s liability is otherwise governed by clause 13.
11.2. Rectification of defects
Qnamic undertakes to remedy any defects, that are duly notified by the customer in accordance with these GTC (during and within the scope of the warranty obligation or during the duration of the cloud operation) and reproducible as far as possible, within a reasonable period of time. The rectification is determined by the degree of impairment of the customer’s business as well as the availability and service levels listed in the main document.
The rectification, i.e. the remedying of defects, is usually carried out by supplying correction codes or instructions to avoid the effects of the defect. The customer shall support Qnamic in remedying the defect within the scope of the cooperation pursuant to clause 7.
11.3. Rectification at the customer’s premises
If the rectification requires an on-site visit to the customer, the customer shall provide Qnamic with the necessary systems as well as access to them and the necessary operating personnel free of charge. This also applies to the premises of a third party where the software is hosted on behalf of the customer.
Travel and accommodation expenses for Qnamic personnel are generally borne by the customer.
The customer must (notwithstanding clause 4.3) give written notice of defects within four weeks of discovery, if possible enclosing the best possible description of the problem (e. g. its effect, in which domain of the software it occurred and in connection with which software functionality it was being used, which part of the customer’s process it is related to). Also proof of reproduction of the defect has to be provided, together with all possible documentation towards the above aspects (such as, but not limited to, print screens, print-outs, system messages, database dumps, failure to deliver a solution or rework).
11.5. Failure of the subsequent improvement
If Qnamic does not succeed in rectifying the defect despite repeated attempts, the customer is entitled and obliged to set Qnamic a period of grace in writing. The grace period must be reasonable and at least 10 working days. The grace period must be sufficient to provide and deliver a solution, suggest a solution or to provide a reasonable (temporary or permanent) work-around.
If the defect leads to a considerable impairment of the contractual use of the software or development result, the customer is entitled, after the useless expiry of at least two grace periods, to terminate the relevant contract with regard to the defective software product or the defective development results or, if applicable, to demand a reduction of the remuneration. In the absence of a deviating agreement in the main document, withdrawal from it is generally excluded.
If a defect only leads to a minor impairment of the contractual use of the software or development results, the customer shall only be entitled to a pro rata reduction of the remuneration agreed for the defective software or the defective development results.
If penalties for non-compliance with availability / service levels are provided for in the main document, these shall be offset against any damages or reduction amount.
11.6. Exclusion of Warranty
The customer’s warranty rights are conclusively described in this clause 11 (and, if applicable, in the main document).
There is no warranty of Qnamic for defects which are due to the fact that the software and/or development results have been used by the customer contrary to the documentation or specifications, or have been modified by the customer, or have been operated in a system environment which does not correspond to the documentation or the specifications or the specific project related recommendations of Qnamic. If it turns out that the cause of a malfunction does not lie in a defect subject to Qnamic’s warranty, but in other circumstances – in particular the aforementioned circumstances for which the customer is responsible – Qnamic is entitled to charge the customer for the expenses and costs incurred in connection with the analysis of the cause of the malfunction and the efforts to remedy the malfunction at Qnamic’s current rates at the time in question.
All of the above also applies in case a third party acts in all or any of such described circumstances on behalf of the customer.
12. Legal Warranty
12.1. Granting of rights
Qnamic warrants that for the contractual use of the software or the services provided by Qnamic there are no third party industrial or intellectual property rights known to Qnamic which are valid in the customer’s country of residence (domicile).
12.2. Claims of third parties against the customer
As soon as third parties assert claims against the customer as a result of alleged infringement of property rights, the customer will inform Qnamic immediately. Upon Qnamic’s request, the customer shall immediately assign to Qnamic the defense of any such claim, including the right to litigate and the right to enter into legal or extra-legal settlements. If the customer fulfils his obligations according to the previous paragraph, Qnamic will indemnify the customer from all claims immediately as soon as a final court decision or a final court or out-of-court settlement has been reached.
12.3. Consequences of infringements of industrial property rights
If the infringement of a property right is confirmed by judgement or settlement, Qnamic will, at its option and expense, either procure for the customer the right to continue using the corresponding programs, replace these programs or modify them in such a way that the infringement no longer exists and the software is suitable for the use desired by the customer even after the corresponding modification, or take back the software affected by the infringement and reimburse the customer for the fee paid to Qnamic, deducting an appropriate remuneration corresponding to the period during which the software was provided to the customer for availability to use.
Any further liability of Qnamic according to clause 13 remains reserved.
12.4. Exclusion of Warranty
The warranty obligation of Qnamic, in particular the indemnification obligation as well as the consequences of infringements of industrial property rights according to clauses 12.1-12.3 shall not apply if the customer himself takes defensive measures against claims of third parties due to alleged infringements of industrial or intellectual property rights without Qnamic’s prior expressed consent and a judicial or out-of-court settlement is reached or a judgement is reached, or if the customer, his employees or legal representatives are jointly responsible for the infringement, in particular if the infringement of property rights in question is due to the fact that the use of Qnamic’s software and/or services is contrary to the individual contract, the documentation and/or the specifications, or that the software and/or services of Qnamic have been used in connection with programs, products or equipment which Qnamic has not released for this purpose. In such a case, the consequences of the infringement of intellectual property rights shall be borne solely by the customer.
13. Liability of Qnamic
Qnamic is only liable for damages of the customer caused by gross negligence or intent. This exclusion does not apply to body damages. Any further liability is excluded to the extent permitted by law, in particular for indirect and consequential damages such as lost profits, unrealised savings, loss of data, etc., and Qnamic shall not be liable for any loss or damage whatsoever arising out of or in connection with such damages.
The customer undertakes to keep secret the trade secrets contained in Qnamic’s software and development results, including copies and edited versions of the programs and services, as well as any related documentation or description. The customer shall treat these information and secrets as confidential and sensitive. This obligation of secrecy is valid indefinitely even after termination or fulfillment of the main document, which is based on or refers to these GTC.
Qnamic undertakes to treat as secret all documents, data and information made available to it within the framework of the fulfilment of the contract which have been designated as secret by the customer or which are undoubtedly recognizable as secret.
15. Transfer of the contract
The transfer of the contractual relationship or individual parts thereof by the customer to third parties is only permitted with the consent of Qnamic. Both the request by the customer to transfer the contractual relationship or parts of it, including its motivation, as well as the permission by Qnamic, including possible limitations to that permission, has to be sent in writing.
16. Applicable law and jurisdiction
In the event of disagreement, Qnamic and the customer shall undertake reasonable attempts to settle the disagreement amicably before the parties take legal action (e. g. court actions etc.). If, however, a court decision cannot be avoided, the parties agree that the exclusive place of jurisdiction shall be Qnamic’s registered office (domicile). The legal relationship between the parties is subject to Swiss substantive law without regard to conflict of laws principles, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) in its entirety.
Should provisions of these GTC prove to be invalid or unfeasible in whole or in part, the customer and Qnamic shall replace these provisions with a new valid and feasible agreement that comes as close as possible to their legal and economic purpose.
Only if an agreement cannot be reached in a reasonable time and with reasonable effort, the law of the Qnamic´s registered office (domicile) shall apply.