General terms and conditions
Open Circle AG
The following General Business Terms and Conditions (GTC) shall be valid for all services and contractual relationships with Open Circle AG.
Supply and Service Agreements shall end without further ado upon their proper fulfilment. In the case of recurring services, they shall be extended tacitly by one additional contractual period insofar as no written termination is declared 3 months before the contractual term lapses.
Open Circle AG may render the services either on its own or, at its own expense, have them rendered by third parties. The place of performance shall be Open Circle AG’s commercial residence.
As a rule, timetables and timeframe data for the delivery, installation and commissioning work shall be considered to be approximate values unless they have been expressly declared to be binding.
Open Circle AG shall render the performance owed through the handover of the product or the work results.
If an acceptance procedure has been agreed, for each acceptance, an acceptance report must be drafted that is signed by both contractual partners. Without an acceptance report, services shall be considered to have been accepted if acceptance is not made within 30 days after the agreed date and/or after the handover and/or if the Customer uses the product in a productive manner.
If the Customer does not accept the contractually-offered product, Open Circle AG may, in addition to the measures prescribed in Art. 91 ff. Swiss Law of Obligations, also demand damage compensation for the future services that fail to be rendered. This shall amount to 50% of the contractual value of the services not yet rendered. In the case of the Customer’s payment default, Open Circle AG shall be entitled, after sending a registered warning letter and setting an extension period, to discontinue the rendering of the service.
For products such as hardware, third-party software, etc. which Open Circle AG co-distributes, other or supplemental provisions shall be valid in part – particularly with regards to rights to the software, the Customer’s authorisations as well as the manufacturer’s warranty rights. The content and the scope of the terms and conditions for the supplying of software products shall be stated directly in the manufacturer’s licensing guidelines which are enclosed with the respective software product in electronic form. The configuration of and warranty provisions for the hardware shall be specified in the manufacturer’s contractual documents.
The manufacturer shall, independently of Open Circle AG, grant the Customer on its own a manufacturer’s warranty in accordance with its own warranty guidelines. Any warranty and liability upon the part of Open Circle AG shall be excluded.
The respectively-current Price and Fee Agreement of Open Circle AG shall be valid.
All price data are understood to exclude VAT and any additional levies. A notification of any price changes shall be sent via post and shall be considered to have been approved if no written objection is lodged within one month after the receipt of the price information sheet.
In the case that an objection is lodged, Open Circle AG shall have the right to terminate the Agreement while providing six months’ notice. Until the Agreement lapses, the service shall be rendered in accordance with the previous conditions.
Invoices issued by Open Circle AG must be paid without any discounts within the agreed payment timeframe after invoicing. After this timeframe lapses, the Customer shall enter into default without further ado.
For the compensation for travel time via car, Open Circle AG shall charge a kilometre-based price as well as a reduced hourly rate (the same price shall be charged for travel via public transportation). For the compensation for travel time via airplane, Open Circle AG shall charge a reduced hourly rate as well as the travel expenses incurred. Any additional expenses (such as lodging accommodations, food and taxis) shall be charged based upon the actual expenditures incurred.
The following supplemental expenses shall be separately invoiced:
The Customer must fulfil all the requirements that he owes so that Open Circle AG can render the services which it owes. He shall be responsible particularly for the following areas:
All rights to the products created by Open Circle AG or its subcontractors shall continue to be held by Open Circle AG. The Customer shall receive a usage right which is non-exclusive and non-transferable.
The warranty for unauthorised rectifications, technical manipulations and/or extensions by the Customer or by third parties shall be excluded.
The parties shall be liable for personal injury in unrestricted fashion. For direct damages which they cause in conjunction with the contractually-agreed contractual performance, they shall be liable maximally for the service fees incurred for the usage of the product within a timeframe of six months before the occurrence of damages. The liability for indirect damages, e.g. lost profits, shall be expressly excluded insofar as this is legally permissible. For the conduct and for the failures to act upon the part of their auxiliary personnel and subcontractors (including their auxiliary personnel), the parties shall be liable as for their own conduct.
The access to our cloud services shall be made via an Internet access and via a suitable web browser. This is not the object of the service owed by Open Circle AG. Open Circle AG shall be responsible only for the contractual functioning of the systems, computers and transmission cables operated by it itself or its vicarious agents. Otherwise, the usage of third-party computer systems and transmission cables on the Internet shall fall into the Customer’s sphere of risk.
The telephone service of Open Circle AG (hereafter, “Open Circle AG”) is per se a nomadic service, i.e. from Open Circle AG’s perspective, the service is not bound to one location and can also be used at another location than the designated installation address. However, the emergency number routing always assumes that the service is being used at the designated installation address.
The Customer shall be responsible for informing all users in this regard in accordance with the statutory directives and obtaining the respective user’s consent that he is purchasing a nomadic service. In accordance with the current legislation these days, each user must expressly and demonstrably provide his consent for the usage of the nomadic service. This is relevant insofar as the nomadisation of the service cannot generally be made per user, but rather only collectively for all users of the service provider.
The Customer may only then offset with counterclaims against the claims of Open Circle AG if they have been recognised in writing by Open Circle AG.
The ownership to the sold hardware products shall only then be transferred to the Customer if they have been paid for in full. Open Circle AG shall be entitled to have the reservation of ownership entered into the public register.
The issuance of a usage license shall be made subject to the proviso of the payment in full of the licensing fees. If the Customer fails to pay the licensing fees, he shall be obliged to delete all copies of the software as well as to return the data carriers and documentation to Open Circle AG.
The parties shall reciprocally entice away no employees or contractors. This obligation shall be valid for the duration of the contractual obligations between the Customer and Open Circle AG as well as for one year thereafter.
Contractual amendments, changes to the General Business Terms and Conditions and ancillary agreements shall only be valid if they have been concluded in writing and signed by both contractual parties with legal validity.
Any subsequent amendments of or supplements to these GTC shall become a contractual component if the Customer does not lodge an objection in this regard within 30 days after becoming aware of the modified Business Terms and Conditions.
Exclusively substantive Swiss law shall be valid for this Agreement. The validity of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980) shall be excluded.
The legal venue shall be Zurich.