General Terms and Conditions LiGenius Solutions AG
1. Scope of application
All present and future business relations between LiGenius So- lutions AG and the customer are exclusively subject to the product-specific terms and conditions of the respective order (software license conditions, software maintenance condi- tions or terms of use of SaaS services) as well as the following General Terms and Conditions in the version valid at the time of the order, to the exclusion of any other conditions which were set out in or referred to in any other document or other correspondence of a customer prior to or upon conclusion of a contract. This also applies in the event that the customer’s general terms and conditions are not expressly contradicted again.
Amendments and modifications to the aforementioned Terms and Conditions must be made in writing and shall only be ef- fective if confirmed in writing by LiGenius Solutions AG.
Current copies of the documents mentioned can be viewed at any time at www.ligenius-solutions.com.
2. Conclusion of contract
Offers of LiGenius Solutions AG are not binding and can be changed at any time. A binding contract is only concluded when LiGenius Solutions AG unconditionally accepts the cus- tomer’s order by means of an order confirmation or by render- ing services.
LiGenius Solutions AG reserves the right to make changes in deviation from the information in the offer documents or the order confirmation if this is necessary due to binding legal or technical regulations.
LiGenius Solutions AG is entitled to withdraw from the contract in the event of spelling, printing and calculation errors in the order.
3. Prices
The price for the software license products and services shall be the price stated in the order confirmation plus the applica- ble sales tax or value-added tax. Price changes and availabil- ity are reserved, unless they have been agreed by a binding order confirmation of the parties. Deliveries and services for which no fixed price has been agreed in advance or which go beyond the agreed scope of services shall be calculated on the basis of the list prices valid at the time of performance.
If services for a customer are provided by a party other than LiGenius Solutions AG, the fee for such a service shall be deter- mined by the company providing the service. These fees are not always a fixed price and may be subject to the use of the services by the customer. The customer undertakes to accept the third party’s billing model and to pay the fee within the pe- riod specified by the third party.
[Any withholding taxes, import duties, levies and duties paya- ble on transactions under these General Terms and Conditions shall be borne by the customer. If the customer is legally obliged to deduct or withhold taxes from the amounts paya- ble under these Conditions, the amount payable hereunder shall be increased in such a way that, after all necessary de- ductions and/or retentions have been made, LiGenius Solu- tions AG shall receive an amount which corresponds to the amount which LiGenius Solutions AG would have received without such deductions or retentions.
4. Terms of payment
Unless otherwise agreed, payments are to be made within 30 days of invoicing. After expiry of this period, the customer shall be in default of payment without the need for an addi- tional reminder. If the customer is in default of payment, Li- Genius Solutions AG has the right to charge default interest of 1% per month.
All outstanding claims become due with the default of the cus- tomer or as soon as LiGenius Solutions AG becomes aware of circumstances which are suitable to reduce the creditworthi- ness of the customer. In these cases LiGenius Solutions AG is entitled to withhold outstanding deliveries or to make deliver- ies dependent on advance payments or securities.
The debtor is only entitled to set-off or retention if the counter- claim of the customer has been acknowledged by LiGenius Solutions AG or has been legally established.
5. Delivery
Unless otherwise agreed, the customer receives the software license products by electronic transmission, electronic access or download. Only the written order confirmation shall be de- cisive for the scope of the delivery obligation.
Delivery dates are only binding for LiGenius Solutions AG if this has been expressly agreed in writing. In the event of a delay in delivery for which we are responsible, a reasonable period of grace shall be granted. After expiry of this period, the cus- tomer is free to withdraw from the contract, unless the readi- ness for delivery of the product to be delivered has been noti- fied before expiry of the period.
6. Return
A return of products or licenses is expressly only possible after prior written approval.
The return of third-party products provided shall be governed exclusively by the return regulations of the third-party provider.
If the software license products received are not the software license products specified in the contract, the customer shall inform LiGenius Solutions AG accordingly within 10 (ten) work- ing days after delivery.
7. Services
The quantities offered are cost estimates. A daily rate corre- sponds to eight (8) hours. Services are always charged on a time and material basis. Unless otherwise agreed, the ex- penses will be invoiced monthly.
LiGenius Solutions AG will render the services with the neces- sary care and, if necessary, in accordance with the contract and in accordance with the procedure agreed in writing with the customer.
LiGenius Solutions AG is not obliged to follow instructions of the customer which change or supplement the content or scope of the agreed services. However, if such instructions are fol- lowed, the performance in question shall be remunerated in accordance with the contract concluded by the parties.
The customer shall not refuse LiGenius Solutions AG the coop- eration necessary and reasonable for the fulfilment of the con- tractual obligations. The customer shall immediately make available to LiGenius Solutions AG all documents and infor- mation required for the provision of services. LiGenius Solutions AG is not obliged to check the quality or accuracy of the cus- tomer’s obligations to cooperate or the correctness or com- pleteness of the information provided by the customer. Upon request, the customer shall confirm to LiGenius Solutions AG in writing the correctness and completeness of the information provided or the documents submitted by the customer.
8. Liability and warranty
The customer’s claims for damages or compensation for futile expenses shall be based on the present clause irrespective of the legal nature of the claim.
The liability of LiGenius Solutions AG is unlimited for damages caused intentionally or by gross negligence or resulting from culpable injury to life, body or health.
If the damage is based only on negligent and not on grossly negligent breach of a material contractual obligation (cardi- nal obligation), LiGenius Solutions AG shall only be liable for the damage typical for the contract and reasonably foreseeable at the time of conclusion of the contract. Any such liability shall be limited in amount to the contract value (i.e. the order in question). Essential obligations (cardinal obligations) are obli- gations the fulfilment of which is essential for the proper exe- cution of the contract, the breach of which endangers the achievement of the purpose of the contract and the ob- servance of which the contractual partner may regularly rely on.
In all other cases, any liability of LiGenius Solutions AG for dam- ages and reimbursement of expenses is excluded.
The customer is responsible for a regular backup of the cus- tomer’s data. LiGenius Solutions AG’s liability for loss of data is therefore limited to the restoration costs that would have been incurred if the customer had regularly backed up the data in accordance with the risks involved.
The aforementioned limitations or exclusions of liability of Li- Genius Solutions AG vis-à-vis the customer shall apply mutatis mutandis to legal representatives, employees, freelancers and other vicarious agents of LiGenius Solutions AG.
In particular, LiGenius Solutions AG does not assume any war- ranty obligations resulting from the use or the defects of third- party products. Any claims should be addressed directly to the individual manufacturers of the products.
9. Retention of title
The right of use of the purchased licenses and products is only transferred to the customer with the complete payment of Li- Genius Solutions AG. LiGenius Solutions AG is entitled to block or delete the corresponding licenses and software products in case of outstanding or delayed payment.
10. Exemption for infringements of intellectual property rights
Subject to the indemnification procedure below, LiGenius So- lutions AG will defend and indemnify the customer and its em- ployees, officers, directors, agents and representatives against such claims asserted against them on the basis of alleged pa- tent, copyright or trademark infringement.
The aforementioned obligation of LiGenius Solutions AG shall not apply if the claims are based on the fact that: (1) the cus- tomer, a third party or LiGenius Solutions AG has modified the software at the request of the licensee (except for such modi- fications as are expressly provided for in the configuration op- tions); (2) the software is connected to other software prod- ucts or processes which do not originate from LiGenius Solu- tions AG and which are not provided for in the documenta- tion; (3) the licensee uses the software without authorisation or contrary to the agreement; or (4) the customer does not install an update which would prevent the infringement of rights af- ter LiGenius Solutions AG has pointed out the update.
The aforementioned indemnification obligations are subject to the condition that the customer (i) immediately notifies Li- Genius Solutions AG in writing of any asserted claim; (ii) grants LiGenius Solutions AG the right to supervise or conduct the in- vestigation, defence and, if applicable, settlement (if applica- ble) of the asserted claim; and (iii) supports LiGenius Solutions AG to the extent reasonably necessary. LiGenius Solutions AG will not consent to any agreement which establishes the fault, liability or other obligations of the customer without the prior written consent of the customer.
11. Scope and granting of rights
LiGenius Solutions AG remains the owner of all copyrights and other intellectual property rights in the software that is the sub- ject of this contract, the services, work results and all rights of use, unless otherwise stipulated in writing in a separate con- tract.
Unless otherwise agreed, the customer shall be granted a sim- ple right of use to the delivered software and the work results after they have been carried out.
12. Subrogation
The customer is not entitled to transfer all or parts of the cus- tomer’s claims against LiGenius Solutions AG, nor all or parts of the customer’s rights and/or obligations under the contracts with LiGenius Solutions AG to third parties without the prior writ- ten consent of LiGenius Solutions AG. This also applies expressly to warranty claims.
13. Subcontracting
LiGenius Solutions AG may subcontract the performance of contractually agreed services to third parties subject to the prior written consent of the customer. Such consent shall not be refused arbitrarily or without good reason. The responsibility of LiGenius Solutions AG for the contractual provision of the services remains unaffected by any subcontracting.
The customer expressly agrees that software developments, technical support and any other services may be provided by IT Services Wagner GmbH.
14. Force majeure
LiGenius Solutions AG shall not be liable to the customer for any loss or damage suffered by the customer as a direct or indirect result of the provision of software license products and/or services by LiGenius Solutions AG being prevented, hin- dered, delayed or rendered uneconomical due to circum- stances or events for which LiGenius AG is not responsible, in- cluding but not limited to force majeure events, war, riot, strike, lockout, fire, flood or storm.
15. Confidentiality
Subject to applicable laws, both parties agree to keep confi- dential information confidential and not to disclose such con- fidential information to any third party without the prior written consent of the other party. For the purpose of this provision, IT Services Wagner GmbH shall not be deemed a third party.
16. Data protection
LiGenius Solutions AG will fulfil the data protection and data security requirements agreed with the customer. The parties shall observe the applicable provisions of data protection law, including but not limited to those applicable in Germany. In- sofar as LiGenius Solutions AG processes personal data within the scope of the provision of its services, this will be done ex- clusively on behalf of the customer. For this purpose, the par- ties shall conclude a separate data processing agreement.
17. Place of jurisdiction
Contracts concluded with LiGenius Solutions AG are subject exclusively to Swiss law, excluding international private law and conflict of laws provisions. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply.
18. General provisions
The invalidity or unenforceability of any provision of these Gen- eral Terms and Conditions shall not affect the validity or en- forceability of the remaining provisions.
Unless otherwise regulated in these General Terms and Condi- tions, all communications and declarations may be made in writing and in text form.
Failure by LiGenius Solutions AG to enforce the terms of these General Terms and Conditions shall not constitute a waiver of such term and shall in no way affect the right to enforce these terms at a later date.
The customer shall be responsible for observing the import and export regulations applicable to the services / acquisition of the software license products, including but not limited to those of the USA.
Exclusive place of jurisdiction is Zurich / Switzerland. August 2019