General terms and conditions

1. Applicability

The following General Business Terms and Conditions (GTC) shall be valid for all services and contractual relationships with Open Circle AG.

2. Contractual Term, Termination

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.

3. Rendering Services

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.

4. Timeframes/Deadlines

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.

5. Handover and Acceptance

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.

6. Acceptance Default

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.

7. Purchase & Warranties for Software and Hardware

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.

8. Prices

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.

9. Travel Time / Travel Expenses

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.

10. Supplemental Expenses

The following supplemental expenses shall be separately invoiced:

1. Services for the analysis and the elimination of disruptions which have not been caused by the supplied or maintained components;
2. Services for the elimination of flawed functions which have been created through third-party interventions or force majeure;
3. Expenses which have been caused as the result of software/virus attacks.

11. Customer’s Responsibility

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:

1. Operational management responsibility for the result attained through the services contractually rendered by Open Circle,
2. Designation of a contact person and the project management,
3. Training the employees,
4. Notifications of disruptions and errors,
5. Supplying the data to be processed,
6. Implementation and controlling of data back-up for those devices, systems and third-party software which are not hosted by Open Circle
7. Supplying of suitable space for the installation including the Internet and telephone connections,
8. Fulfilment of the usage guidelines issued by Open Circle AG and/or the manufacturers,
9. Supporting the employees of Open Circle AG,
10. Definition and programming of the interfaces to be realised by the Customer,
11. Supplying, operation and maintenance of the components to be procured by the Customer,
12. Coordination of and ensuring the rendering of services by third-party companies,
13. Inspection of the products immediately after handover and lodging immediate notifications of defects,
14. Procurement of consumable supplies such as toner, paper and removable data carriers as well as the replacement of wear-and-tear parts.

12. Rights to Work Results

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.

13. Warranty Exclusion in the Case of the Customer’s Own Fault

The warranty for unauthorised rectifications, technical manipulations and/or extensions by the Customer or by third parties shall be excluded.

14. Liability

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.

15. Nomadic Service

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.

16. Offsetting Exclusion

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.

17. Security

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.

18. Enticement Ban

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.

19. Contractual Amendments, Ancillary Agreements

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.

20. Special Provisions for Internet Services

1. The Customer acknowledges that Open Circle AG shall in principle dynamically award the IP addresses. Public IP addresses assigned to the Customer shall remain Open Circle AG’s property.
2. The Customer shall be obliged to not misuse the services of Open Circle AG for the dissemination and/or the retrieval of information with illegal or immoral content. If Open Circle AG identifies such misuse, Open Circle AG shall be entitled to block the connection promptly and without advance notice. The Customer shall be obliged to pay damage compensation and shall have no claim to a reimbursement of any payments that have already been made.
3. It shall be the Customer’s responsibility to protect Open Circle AG’s services that he uses from unauthorised access and manipulation. The Customer shall be liable in full scope for any corresponding damages.
4. In the case that operationally-required measurements or grid modifications are implemented, Open Circle AG shall be entitled to interrupt the services – if possible, with prior notice – without reimbursing any payments that have already been made.
5. The Customer shall have the sovereignty over the usage and customer data and the ownership thereto. After the contractual relationship lapses, they shall be returned in a suitable form. The dissemination / continued usage of the data shall not be made without the Customer’s written consent. Open Circle AG hereby waives a right of retention to the data. The Customer shall be entitled at any time to demand the return of the customer data at its own expense.

21. Changes

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.

22. Applicable Law, Legal Venue

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.