Kiratech Swiss SA - General conditions on goods supply and service contracts
KIRATECH SWISS SA - GENERAL CONDITIONS ON GOODS SUPPLY AND SERVICE CONTRACTS
The present document, attached to the contract proposal, regulates the general terms and conditions of supply between Kiratech Swiss SA, in the person of its legal representative "pro tempore", with registered office in Lugano, Viale Carlo Cattaneo n 1, VAT CHE-144.749.894, hereinafter referred to as the "Supplier" and the client company, hereinafter referred to as the "Client" (together: "the Parties"), and applies to every contract for the supply of goods and services (hereinafter: the "Contract") concluded after its signature for acceptance by the Parties (
1) CONCLUSION AND EFFECTIVENESS OF AGREEMENTS
1.1 Contracts concluded between the Supplier and the Customer are valid and binding only if concluded in writing and may only be amended in accordance with that form, with both parties signing.
1.2 The fact that the Parties have not exercised a right granted to them under the Contract or have not required the other Party to perform any obligation arising under the Contract shall in no case be construed as an express or implied waiver of the right to exercise that right in the future, nor of the right to demand the exact performance of the other Party's obligations.
1.3 The clauses included in the commercial offer attached to the Contract proposal shall be considered as integral parts of these General Conditions of supply and shall always prevail over the content of the latter.
2) OBJECT OF THE CONTRACT
2.1 The subject matter of the Contract is the sale of products and/or the supply of computer services that the Supplier undertakes to provide, as described in detail in the Contract proposal.
2.2 The subject matter of the Contract also includes all ancillary or preparatory services that are necessary or merely useful for the performance of the services, such as meetings, travel, etc., the costs of which shall be billed on to the Customer at the rates indicated in the attached contract proposal.
3) RESOURCES AND COOPERATION OF THE CLIENT
3.1 The Client shall promptly and correctly notify the Supplier of the circumstances, documentation, information and in general all data relevant to the performance of the Contract.
3.2 If the service is to be carried out at the Client's premises, the Client shall provide the Supplier's staff with the necessary room, connections, energy, air conditioning, security equipment, consumables, telephone, fax and data transmission connections, stationery, equipped workstations, surveillance, forms and anything else necessary for the proper performance of the Contract, and provide them with the necessary hardware, basic software and applications.
3.3 The Customer undertakes to provide the cooperation of its own technically formed personnel at the times, in the ways and in the quantities necessary for the correct performance of the activities envisaged.
3.4 The Customer undertakes to pay the agreed remuneration also in the event of non-performance of the supply of goods or services by the Supplier, if such non-performance is due to violation by the Customer of the obligations under this point 3).
3.5 Appointments agreed with the Supplier's personnel cannot be cancelled except for serious reasons and with at least three working days' written notice. In any case, even in the event of serious reasons, the Client shall be charged for all expenses advanced by the Supplier for the performance of the service.
4) PERSONNEL
4.1 The choice, assignment and methods of employment of the personnel required for the execution of the works shall be in the exclusive competence of KIRATECH SWISS SA, which reserves the right to make any necessary replacements.
4.2 The Supplier's personnel shall, after appropriate information and training by the Customer, undertake to observe the safety, hygiene and production standards and protocols laid down by the latter.
4.3 The personnel of the Supplier placed at the disposal of the Customer shall remain to all intents and purposes auxiliaries or employees of the Supplier, to the exclusion of any subordinate relationship to the Customer.
4.4 The Client undertakes, for the entire duration of the service and for a period of two years following its termination, not to enter into any form of employment, agency, consultancy, business procurement or collaboration contracts with the Supplier's employees, unless approved in writing by the Supplier.
4.5 In the event of a breach of clause 4.4 the Client shall be obliged to pay the Supplier the amount of CHF 100,000.00 as a penalty, in addition to the greater damage if proven by the latter, without prejudice to the Supplier's right to terminate the Contract immediately. The right to initiate criminal proceedings against the Customer for violation of the Federal Law against unfair competition is also reserved.
5) SERVICE LEVELS
5.1 Any disputes as to whether the services provided by the Supplier comply with the agreed specifications shall be reported by the Client to the Supplier in writing within 8 days of the supply of the goods or services, failing which the Supplier's services shall be deemed to have been properly performed and accepted as such by the Client.
5.2 At the specific, written request of the Customer, the Supplier shall check the level of service in the production environment; after the check, the Parties shall sign a test report.
5.3 The signing of the aforesaid report by the Customer implies the renunciation of any subsequent dispute on the correct performance of the supply, even before the expiry of the 8-day complaint period provided for in point 5.1.
6) SECURITY AND BACK-UP
The Customer shall ensure the back-up of data, computer programs and procedures with its own means and under its own responsibility before the start of the performance of the Contract; therefore the Supplier shall be exempt from any liability for loss of data, computer programs and procedures.
7) SUPPLIER'S LIABILITY AND GUARANTEES
7.1 In the supply of hardware and software products, the Supplier shall not be liable for any defects or deformities of the product, nor for any damage caused directly or indirectly by such defects of the product, for which only the manufacturer's warranty shall apply.
7.2 The Supplier shall not be liable for the correct functioning and performance promised by the manufacturers of the software sold.
7.3 In the provision of third party services, including Cloud services, the Supplier is not liable for failure or inaccurate performance by the third party.
7.4 The Supplier shall be liable for discrepancies, defects and immediate and direct damages caused in the performance of the contractual activities if they are due to his own fault or that of his employees. The Supplier shall be liable for such damages up to the limit of the remuneration received, subject to a maximum limit of CHF 150,000.00. However, compensation for any damage relating to loss of profit, data, time, information or other economic benefits shall be excluded.
7.5 The burden of proving that the Supplier's failure to fulfil its obligations is due to intent or gross negligence on the part of the Supplier or its employees is always on the Customer.
7.6 Should the Supplier be held responsible for a defect or malfunction covered by the guarantee (excluding software or hardware defects covered by the manufacturer's/provider's guarantee), he shall be obliged exclusively to eliminate the defects at its own expense, excluding any reduction in price.
7.7 The following shall be deemed to be specific grounds for exonerating the Supplier from liability:
- the direct and indirect consequences deriving from embargoes and other economic sanctions, acts of war, pandemics and epidemics, measures and acts of the Public Authorities, with the exclusion of measures adopted by the Judiciary against the Supplier for non-compliance with mandatory regulations
- the interruption of electricity and/or other supplies necessary for the proper fulfilment of the Supplier's contractual obligations
- the interruption, suspension or cancellation of connections to communication lines due to causes not attributable to the Supplier
- strikes by third parties involved in the provision of the service under this Contract, including the Customer's and the Supplier's staff
- atmospheric and natural events of exceptional magnitude or impact, such as floods, earthquakes, landslides, solar storms (the list is not exhaustive)
- consequences of unlawful acts or vandalism committed by third parties;
- errors or omissions caused by the Customer, including in the transfer of data to the Supplier
- malfunctioning of the software or hardware configurations attributable to the Customer or resulting of their use in disregard of the instructions received from the Supplier
- damage or defects resulting from changes made by the Customer to its IT-environment, networks, server and/or workstations without the Supplier's knowledge, or from incorrect or incomplete information provided by the Customer to the Supplier
- direct or indirect damage suffered by the Customer or a third party as a result of the non-use of the computer programs and/or their update services, or the non-renewal of the licences and guarantees provided by the manufacturer (e.g. non-renewal of maintenance, subscriptions, support services, software updates, etc.)
- direct or indirect damage due to unauthorised access by third parties to the customer's IT system, in particular in the event of the absence, malfunction or violation of security devices such as firewalls, filters, antivirus programs and the like.
8) PAYMENT TERMS, INVOICING METHOD. INTEREST
8.1 The payment terms provided are ________________________ unless a specific derogation is expressly indicated in the offer.
8.2 The amounts mentioned are net of Value Added Tax (VAT).
8.3 The Customer shall be responsible for indicating and documenting any reasons for exemption, reduction or diversification of the applicable VAT rate.
8.4 If the Customer does not honour payment of the invoices within the agreed deadlines, interest on arrears shall be due for the period of delay, at the rate established by Art. 73 CO.
8.5 In the event of late payment of an invoice or even a single instalment (in the case of continuous or periodic services or fractionated payments), the supplier shall be entitled to suspend the service with immediate effect.
9) OBLIGATIONS OF THE CLIENT
9.1 Upon justified request of the Supplier, the Customer shall enter into contracts with third party suppliers for the acquisition of hardware, software or auxiliary services necessary or useful for the provision of the Service, unless otherwise provided.
9.2 If equipment owned by the Supplier or its suppliers is to be installed on the Customer's premises, the Customer shall
- a) look after the said equipment with the diligence of a good father and maintain it in optimal environmental and operating conditions;
- b) guarantee that he is in possession of all the licences, authorisations and certifications necessary for the use of the aforesaid premises (e.g.: building permits, practicability licenses , fire prevention certifications, etc.), covering in any case at its own expense all the charges, taxes, fines and expenses necessary for the maintenance of the aforesaid licences and authorisations or for any reason deriving from relations with the authorities responsible for issuing the same;
- c) equip his IT-system with all the hardware and software devices necessary, according to the Supplier's instructions, to guarantee the protection and security of the system, such as, in particular, firewall devices, antivirus, uninterruptible power supplies, backup devices and the like;
- d) be liable for deterioration or loss (including fire and theft) of the equipment and related software even if caused by third parties and reimburse the Supplier for the expenses incurred in replacing and repairing the equipment and related software.
9.3 If the supply relates to consulting or support services purchased by the Customer on an hourly or daily basis, the Customer shall use the services within 18 months after acceptance of the offer. If the Customer does not use the purchased services within this period, the Supplier shall be released from all obligations.
10) CONFIDENTIALITY
10.1 Each party acknowledges that the Information classified as Confidential is a valuable commercial asset, undertakes to use the Confidential Information of the other party only in accordance with the provisions of this clause and not to disclose, or permit the same to be disclosed, without the prior written consent of the other party.
10.2 The Customer also undertakes not to disclose documentation, procedures and programs he has received or got to know through the Supplier, unless the Supplier has transferred the relevant ownership or usage rights to the Customer.
10.3 The Supplier shall ensure the secrecy and confidentiality of the data, information, know-how, he has been provided with for the execution of this Contract.
10.4 Information shall not be considered secret when the recipient
- can prove to be already in legitimate possession of it
- received it from a third party validly authorised to disclose it without any obligation of secrecy
- has acquired it from sources normally accessible to the public.
10.5 The Supplier, unless expressly denied by the Customer in writing, shall have the right to indicate the Customer as his commercial and technical contact, in support of his marketing and development activities with customers or potential customers, both private and public, in any form of communication and diffusion.
11) DATA PROTECTION
11.1 The Supplier hereby declares that, in the performance of the contract, he will not set up or organise any independent database with the information and data stored by the Customer and in general will not carry out, either at its own premises or at the premises of the data controller, any operation of: collection, recording, storage, organisation, structuring, adaptation or modification, extraction, consultation, use, communication by transmission, diffusion or any other form of making available, comparison or interconnection, limitation, deletion or destruction of personal or sensitive data held by the data processor.
11.2 If the Client wishes to assign specific tasks to the Supplier involving obligations to process personal data held by the Client, the Client must first enter into an agreement appointing the Supplier as the processor within the meaning of 10a DPA.
12) COPYRIGHT
12.1 The copyrights on software, concepts, ideas and techniques that may be developed by the Supplier in the execution of this contract, also if in cooperation with the Client, belong exclusively to the Supplier;
12.2 The Customer shall not transfer or allow third parties to use the rights referred to in the preceding point for any reason whatsoever, nor incorporate them, even partially, into other programs, or extract copies, even if only partial, except for security copies, unless a prior written authorisation of the Supplier is obtained in each case.
13) INSURANCES
13.1 By entering into the Contract and consequently accepting these General Terms and Conditions, the Customer confirms that he has valid and adequate insurance protection against the risks that the Supplier's personnel may incur on the Customer's premises.
13.2 The Client also undertakes to insure the risks concerning the availability, use, or/and possession by the Client of the Supplier's goods by means of an insurance policy,
13.3 The Supplier guarantees its insurance cover for personal injury and damage to property by means of policy no. 80,262,992 taken out with Generali Assicurazioni with a maximum cover of CHF 1,000,000.00 for Switzerland and CHF 500,000.00 for the remaining territories - expiry date 31.01.2027.
14) TERMINATION OF THE CONTRACT
14.1 If the Contract is concluded for a fixed term, its early termination by the client shall be considered as occurring at an inopportune time within the meaning of Art. 404 para. 2 CO, except in the case of termination due to proven, contractual failure to provide the services in full compliance with the characteristics or quality levels specifically agreed upon in the Contract or else due to proven violation of data protection regulations.
14.2 Mere delay in the performance of the service by the Supplier shall not in itself be considered a cause for termination of the Contract.
14.3 The Parties expressly agree that if the Supplier's non-performance relates to a non-essential part of this Contract, and the other Party still has an interest in receiving the services not affected by the non-performance, the termination may be invoked and shall be effective by right only with reference to that part of the relationship affected by non-performance.
14.4 Termination at an inopportune time by the customer shall entail the latter's obligation to pay the Supplier the full remuneration for the agreed contractual period, while exempting the latter from providing the agreed services.
14.5 The Customer may terminate the Contract, the exclusive purpose of which is the supply of software and/or hardware, as well as of any accessories or system parts necessary for their operation, before the supply or installation of the goods supplied, only by indemnifying the Supplier against all damages, including loss of profit (Art. 377 of the Swiss Code of Obligations).
14.6 The Supplier may withdraw from the contract at any time in the event of non-payment in full of the remuneration (§8), violation of the confidentiality and intellectual property regulations (§10 and 12), violation of the obligation of non-employment of the Supplier's employees (§4.5) and failure to provide insurance cover (§13.2 and 13.3). Furthermore, the Supplier reserves the right to terminate the Contract with immediate effect if any breach by the Customer makes it impossible for him to provide his contractual services correctly and on time. Lastly, the Contract may also be terminated by the Supplier in all cases in which the Customer's solvency guarantees cease to exist because he is subject to bankruptcy or other insolvency proceedings, or else in the presence of concrete indications of insolvency or over-indebtedness risk, as well as in the event of criminal proceedings being initiated against the Customer for offences involving the use or abuse of computer tools and Information Technology of any kind.
15) ASSIGNMENT OF THE CONTRACT
This Contract and the rights and obligations arising from it may not be assigned in whole or in part to third parties without the prior consent of the other Party, except for the assignment by the Supplier to third parties of its claims against the Customer.
16) JURISDICTION
For any dispute concerning the content, interpretation or execution of the commercial offer, of the Contract and of the present General Conditions as well as the obligations arising from such agreements, the Parties acknowledge the exclusive jurisdiction of the ordinary Courts of Lugano.
17) APPLICABLE LAW
The Parties declare to choose the material Swiss law as the applicable law to the Contract, to the commercial offer, to the General Conditions and to the obligations arising from such agreements, making full reference to such law for what not otherwise expressly and validly provided by them.
18) NOTICES AND FORMALITIES
All notifications and other communications relating to this Contract shall be made in writing and shall be sent by registered letter with return receipt (racc A.R.) sent to the respective registered offices of the Customer and the Supplier.